Lords Sitting of 25 October 2000

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Lincoln.

Omagh Bombing
Lord Lamont of Lerwick Lord Lamont of Lerwick asked Her Majesty's Government:
Whether they will set up a public inquiry under a senior judge into the circumstances of the Omagh bombing and the absence of any prosecutions.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, given the appalling consequences wreaked by the Omagh bombing, I can well understand the noble Lord's motivation in calling for an inquiry. I am, however, less clear on the merits of such an inquiry, given that police investigations are continuing, not just in this jurisdiction but also in the Republic of Ireland. A public inquiry would inevitably cut across those investigations and could prejudice subsequent court proceedings in either jurisdiction.
Although there have been no prosecutions in Northern Ireland to date, it cannot be inferred that none will follow in the future. In the Republic of Ireland, one man has been charged with conspiracy to cause an explosion and membership of an illegal organisation in relation to the Omagh bombing. A public inquiry would call on witnesses who may subsequently be required to give evidence at criminal proceedings. That would raise difficult issues of disclosure, admissibility and conflicting evidence. The position is further complicated since by no means all of the important suspects, and possibly witnesses, live in Northern Ireland.
For those reasons, the Government do not intend to set up a public inquiry. A very public and harrowing inquest into the Omagh bombing has just been concluded on 5th October. The people, and especially the victims and bereaved of Omagh, deserve justice. The best means of securing that justice is to allow the police investigations and any court proceedings to run their full course.
Lord Lamont of Lerwick: My Lords, I am most grateful to the noble and learned Lord for that reply. But is it not somewhat curious that he should cite the danger of jeopardising court proceedings when the Secretary of State for Northern Ireland himself supported the BBC broadcast which—I put it to him—strongly prejudiced court proceedings in any event?
Is the noble and learned Lord aware that everyone would agree with the sentiment uttered by the Prime Minister's wife that anyone who has had a child murdered is entitled to know who did that and, if not, why it is not possible to know that?
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The Government quite rightly set up an inquiry into the failure to bring prosecutions for the murder of Stephen Lawrence. They also, as a sop to Sinn Fein/ IRA, set up a second inquiry into Bloody Sunday. Those events happened so very long ago it is doubtful whether people could usefully add anything to what has already been investigated. If the Government wish this matter to be taken seriously and wish people to believe that they want the murderers to be brought to justice, why can we not have an inquiry into those much more recent events?
Lord Falconer of Thoroton: My Lords, because, as I have said, what is required here is the criminal process to take its course. A public inquiry could well prejudice the criminal process. That is not what we wish. We urge all political parties to encourage their communities to come forward with as much information as possible to assist the criminal process.
I do not want to comment at all on the content of the "Panorama" programme because I do not want to prejudice any criminal investigations. But I should say that the matter was brought before the courts, which considered that that programme would not prejudice any subsequent criminal trial.
Lord Harris of Greenwich: My Lords, is the noble and learned Lord aware that there is not the remotest relationship between the Omagh bombing and the Lawrence inquiry in London? It is quite absurd to suggest that there is any parallel.
Lord Falconer of Thoroton: My Lords, I agree with what the noble Lord said. Active criminal investigations are being undertaken in relation to Omagh, which should continue.
Lord Laird: My Lords, is the Minister aware that in Northern Ireland and on this side of the water, there is a view that the Government of the Irish Republic are not helping to the degree that they should in seeking those who are to be blamed for that dreadful atrocity? That is because they do not wish to offend extreme republicans. Will he tell us whether, in his view, the Dublin Government have used the full panoply of legislation which has been introduced specifically to deal with that type of crime?
Lord Falconer of Thoroton: My Lords, the suggestion that the Irish Government have allowed political considerations to interfere with the investigation has been refuted strongly in the Republic of Ireland. The Minister for Justice, Equality and Law Reform said in the Dáil that:
"the allegation that the Irish Government have allowed political considerations to interfere with the bringing to justice of those responsible for the atrocity at Omagh is completely without foundation. The Garda has made, and continues to make, every effort to apprehend those responsible for the Omagh bombing and have the full support of the government in that".
I understand that the RUC believes that the Garda is actively investigating the atrocity.
Lord Dubs: My Lords, is not the truth that there is very close co-operation indeed between the Garda and

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the RUC on this tragic matter? Is it not further true that a public inquiry would reveal nothing at all because the facts of that terrible outrage are all too well-known? The difficulty which we face is the need for a bit more evidence to bring certain people to justice. It is the co-operation of people in the community on both sides of the Border who may have that evidence which is being earnestly sought.
Lord Falconer of Thoroton: My Lords, the Government believe that the Garda and the RUC are co-operating in an extremely full investigation. That should be allowed to continue in order to bring the perpetrators to justice in a way which will produce a sensible result in court.
Lord Waddington: My Lords, has not the noble and learned Lord read that Mr Martin McGuinness has admitted to an American newspaper that he knows who the killers are but refuses to disclose their identity? Is that not a truly shocking state of affairs and does that not render him quite unfit to be a member of a government?
Lord Falconer of Thoroton: My Lords, I do not know of the specific newspaper article to which the noble Lord referred. However, I repeat what I said in answer to an earlier supplementary question. We urge anyone with information about the Omagh atrocity to come forward and assist the police investigation.
Lord Hylton: My Lords, will the noble and learned Lord confirm that there have been at least four arrests in the Republic of Ireland? Will he also confirm that the police in Northern Ireland will do their utmost to protect any potential witnesses?
Lord Falconer of Thoroton: My Lords, I can certainly confirm the second part of the noble Lord's question. On the first part, there have been a number of arrests, but I do not want to comment any further on the investigation process.
Lord Tebbit: My Lords, as the Real IRA has claimed responsibility for that outrage, was it entirely appropriate last week that its members were allowed to hold a funeral in west Belfast clad in combat gear, wearing masks and armed? Moreover, a fusillade of gunfire was fired over the coffin in the streets and no police action was taken. Who instructs the police to let those matters go by?
Lord Falconer of Thoroton: My Lords, I am not in a position to comment on the operational arrangements in relation to the matter to which the noble Lord refers. As to the Real IRA's involvement in the Omagh atrocity, I simply refer to the observations of the coroner at the end of the inquest:
"The Real IRA claimed responsibility for the car bomb, though they sought to pass responsibility to the police for the casualties. As far as I am concerned they were responsible for all that happened".
Lord Eames: Does the Minister agree that, notwithstanding his Answer to the noble Lord
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opposite, this House should place on record its admiration for the dignity with which the families of the victims of the Omagh disaster conducted themselves during the weeks of the coroner's inquest? Does the noble and learned Lord agree that they are an example to the whole community in Northern Ireland, and that that dignity deserves an end to this nightmare as soon as possible?
Lord Falconer of Thoroton: My Lords, I entirely agree with the noble Lord.

Oil Revenue and Taxes
2.45 p.m.
Lord Northbrook Lord Northbrook asked Her Majesty's Government:
What is their assessment of the additional revenue accruing to the Treasury in the current financial year as a result of recent increases in the price of crude oil, given that the Chancellor of the Exchequer's budgetary projections were based on an oil price of 20 dollars a barrel.
Lord McIntosh of Haringey: My Lords, updated revenue forecasts will be published in the Pre-Budget Report.
Lord Northbrook: My Lords, I thank the Minister for his reply. In view of the extra revenue, which may amount to £2 billion, arising from the increase in the price of oil from 22 to 30 dollars per barrel, will the Government consider cutting the high level of transport taxes generally and fuel tax and vehicle excise duties, which I understand for some heavy goods vehicles are eight times higher than in France?
Lord McIntosh of Haringey: My Lords, the noble Lord is entitled to speculate as he wishes on the revenue effects. I can only say that a number of factors affect revenue and work in different directions. For example, higher oil prices increase the profits of companies which operate in the North Sea and, therefore, the amount of corporation tax that they pay. However, they reduce the profits of others who pay more for their petrol and that decreases corporation tax. We gain VAT on oil but lose it on the products which people do not buy because they have to pay more for oil. The increase in price has no effect on fuel duty, which is a fixed amount per litre. These are complex considerations. If the noble Lord is able to make a quick calculation of their net effect he is a better man than I am.
Lord Jenkins of Putney: My Lords, in advance of any inquiry into this matter, can my noble friend tell the House what proportion of the average price of a gallon of petrol is made up of UK taxation?
Lord McIntosh of Haringey: My Lords, for petrol, ultra-low sulphur diesel and red diesel the figures are 75.3 per cent, 73.48 per cent and 27.2 per cent respectively.
Lord Ezra: My Lords, in view of the recent strong statement by the Prime Minister in favour of the

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environment, can one assume that a large part of the additional tax revenues earned from the increase in the oil price will be devoted to environmental purposes and particularly in the road transport sector to increase efficiency and reduce emissions?
Lord McIntosh of Haringey: My Lords, I read the Prime Minister's speech very carefully and did not see anywhere in it the word "hypothecation".
Lord Boardman: My Lords, does not the vast booty from these taxes, which the Minister is unable to disclose, result largely from problems in the Middle East" Does the Minister agree that the Government are accumulating a vast war chest which they will use in due course to promote themselves at the next election? Can the noble Lord take pride in that?
Lord McIntosh of Haringey: My Lords, I notice that the noble Lord, Lord Boardman, is more cautious than his noble friend Lord Northbrook, in that he refers only to a "vast booty" rather than an actual figure. I believe that he goes further than the evidence suggests and underestimates the extent to which taxes on petrol, both VAT and fuel duty, are only a very small part of the total revenue that is available to this country. Therefore, the conclusion that the noble Lord draws about war chests is not valid.
Baroness Platt of Writtle: My Lords, does the noble Lord agree that it is the tax on diesel fuel for lorries which is one of the biggest problems? All deliveries of retail goods to shops, whether of clothes, food or white goods, are made by lorry in the final resort. Does the Minister agree therefore that this is a tax on every citizen of this country, including hauliers and farmers, and it is very important that it should be reduced?
Lord McIntosh of Haringey: My Lords, the noble Baroness is quite right. That is why Ministers have been engaged in continuing, lengthy discussions with hauliers. The participants also include those who took part in the protests last month, although in the context of a clear understanding that we do not give way to pressure arising from protests.
We recognise that the price of diesel is a significant factor in the cost of many other goods sold in this country. However, although fuel tax may be higher, the total costs borne by haulage firms are very much less in the United Kingdom because of lower rates of corporation tax and the absence, for example, of motorway tolls.
Lord Newby: My Lords, we listened carefully to the noble Lord's original Answer. However, surely he must admit that, if the price of crude oil rises, the net effect on the UK Exchequer is an increase in revenues, although offsetting effects should also be considered? Perhaps I may press the noble Lord, as other noble Lords have done, on whether, in the light of events that have taken place over the past six weeks, it would be
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prudent for the Government to contemplate using at least part of that increased revenue to ease the burden on the travelling public.
Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Newby, is more cautious than the noble Lord, Lord Boardman, who in turn was more cautious than the noble Lord, Lord Northbrook. I was asked to give an assessment of the additional revenue accruing to the Treasury. My response now, as then, is that that is a matter for the Chancellor to consider for the Pre-Budget Report on 8th November.
The Earl of Northesk: My Lords, following tangentially on the question put by the noble Lord, Lord Ezra, can the Minister confirm the view, widely touted in Government circles and one certainly implied by the Prime Minister, that any reduction in motoring taxes would give rise to a corresponding reduction in the availability of funds for spending on core items such as health and education?
Lord McIntosh of Haringey: My Lords, that must be the case. The noble Earl, Lord Northesk, will be aware that a reduction in fuel duty of the kind proposed by the Conservative Party; namely, around 3p per litre—after stating that they would not be influenced by the protests—would result in savings to the average motorist of approximately £3 per month.

Voices Magazine
2.52 p.m.
Viscount Goschen Viscount Goschen asked Her Majesty's Government:
By what criteria they consider that the publication of the magazine Voices represented an appropriate use of public funds.
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, the Government publish an annual report on women's policy in accordance with the United Nation's Beijing Platform for Action agreed by the previous administration in 1995. For the past two years we have published the report in an accessible magazine format called Voices. Last year's report was particularly commended at the United Nations Special Assembly on Women held in June. We expect this year's report to be read by 1 million women, It costs 51p per copy to produce.
Viscount Goschen: My Lords, I thank the noble Baroness the Leader of the House for her Answer. Does she accept that the dispute does not concern the importance of the subject matter, but rather the fact that the Government have produced their own far from independent magazine when so many commercial titles already cover the same issues? The Government are in danger of giving rise to the impression that they are ignoring the boundary

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between the legitimate publication of factual information and political self-promotion at public expense.
A noble Baroness: Has the noble Viscount read it?
Baroness Jay of Paddington: My Lords, my noble friend sitting in her place behind me has asked whether the noble Viscount has read the publication. I suspect that he has but—without wishing to trespass on the range of the noble Viscount's reading matter—I hesitate to think that he is probably a regular reader of women's magazines. All I can say to him is that the information contained in Voices was extremely carefully researched. This year we enjoyed the great advantage of receiving specialised help from a particularly well-renowned women's magazine. That contribution enabled us to give women information of a kind which I think that it would be extremely difficult to describe as party political. For example, the magazine includes at the back detailed information as regards help on a range of issues and lists addresses to which people may apply for practical advice. It would be difficult to criticise that on party political grounds. Indeed, it is an extremely good publication on which we received expert help.
Baroness Williams of Crosby: My Lords, I have been a regular reader of Voices since its original publication and a rather irregular reader of conventional women's magazines. Perhaps I may congratulate the Leader of the House. This is exactly the kind of publication that many women need and will find extremely useful. Perhaps I may say further that I do not think that it is characterised by propaganda, but rather by information of a kind that, for women, is extremely important. Will the noble Baroness accept those compliments?
Baroness Jay of Paddington: Gladly, my Lords. I am very grateful to the noble Baroness. She has put her finger on the precise point here: the magazine aims to provide choices and information for women in a way which we hope is more acceptable and accessible to them than perhaps would be the case with more conventional government publications. It is also interesting to note that, since the publication was distributed to the 130,000 subscribers to Good Housekeeping—along with a wide distribution to doctors' surgeries and so forth—we have received an additional 2,000 requests made directly to the Cabinet Office for more copies of the magazine.
Baroness Howells of St Davids: My Lords, can my noble friend tell the House how the cost of the publication Voices compares with other parliamentary publications?
Baroness Jay of Paddington: My Lords, as I said earlier, the cost per copy of Voices is 51p. The average cost of the last 12 publications that I have been able to secure from the Central Office of Information has been
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£3.37. Noble Lords may be interested to know that the House of Lords annual report, which I am sure that we would all agree is a very worthy and informative publication, costs £6.50 per copy.
Baroness Young: My Lords, does the noble Baroness the Leader of the House recognise that the point raised by my noble friend Lord Goschen is extremely serious? Does she agree that a distinction must be made between proper material from a government department and material that is clearly party political propaganda? Does she further recognise that the covering letter that was sent out with Voices makes it clear that this is what women can expect from the present Government, whereas anyone who has read the magazine will know that a great deal of the information and material contained in it applied just as much under a Conservative government as under the present administration? The distinction has been blurred.
Baroness Jay of Paddington: My Lords, as I made clear in my initial reply to the noble Viscount, Lord Goschen, this exercise is a continuation of a process that was initiated under the previous administration. It is precisely because the previous government decided to sign up to the Beijing Platform for Action on women's issues that the annual report is being published by the Government. The fact is that this Government have chosen to publish it in a form that we have found to be readily accessible to women. I do not say that in any kind of patronising way; all the evidence shows that both men and women find the publication of information in a format such as that adopted in Voices far more accessible than is the case for broadsheets or other more conventional government publications. As the noble Baroness, Lady Williams, was kind enough to say, we should be congratulated on achieving that.
Baroness Lockwood: My Lords, is it not a fact that there is a lacuna in the general flow of information from government to the public, whichever party may be in power? That is often reflected in the low take-up of many benefits. Is it not therefore important that initiatives such as Voices should be taken to ensure that women can find out about their rights and know what facilities are available to them?
Baroness Jay of Paddington: My Lords, I am grateful to my noble friend. She, too, has put her finger on an extremely important point. Voices has strived to be as informative as possible. The last three pages of the publication are devoted entirely to a guide containing names, numbers, addresses and websites to contact for advice and information on the issues that matter most to women. Those range from healthcare to the kind of benefits to which my noble friend has just referred.
Lord Mackay of Ardbrecknish: My Lords, because men tend to live for a slightly shorter time than women, does the noble Baroness not agree that there

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may be a need for an equivalent health guide for men? Into which magazine does she think it might be inserted?
As one who actually has read the magazine Voices, I have to say to the noble Baroness that, judging by the pictures of herself and Tessa Jowell which are so well distributed throughout the publication, it did somewhat strike me as an organ that details what Labour has done for women. Does the noble Baroness really think that that is a proper use of public funds?
Baroness Jay of Paddington: My Lords, the magazine states clearly and firmly on the front cover that it is the Government's guide to opportunities. The fact that that refers to a Labour Government may not be something that the noble Lord finds palatable. However, that is the situation and I suspect that it will remain so. Furthermore, as I stated earlier, the front page of the publication makes it clear that it relates to our commitments under the Beijing process. So far as concerns the Conservative Party, perhaps they should publish a magazine called "Boys' Own".

Euro Changeover Plan
3 p.m.
Lord Astor of Hever Lord Astor of Hever asked Her Majesty's Government:
Whether they intend to continue with the national changeover plan for the euro in the light of the Prime Minister's statement that he would vote "No" in a referendum held today.
Lord McIntosh of Haringey: My Lords, the Government's policy on membership of the single currency remains as set out by the Chancellor of the Exchequer in October 1997 and restated by the Prime Minister in February 1999.
Lord Astor of Hever: My Lords, in the light of the Prime Minister's U-turn and the increasingly unlikely chance of early UK entry into the euro, does the Minister agree that further expenditure on the changeover plan is a waste of taxpayers' money?
Lord McIntosh of Haringey: My Lords, the Prime Minister's comments to journalists last week are entirely consistent with my Answer and with the Government's position. We have always said that to take a decision before the election would not be realistic and that we would therefore not recommend it to Parliament or to the people. In the remote possibility that someone else presented it to the people, it is hardly inconsistent that the Prime Minister would say, "No". That is entirely consistent.
It has been made clear from the beginning that expenditure on the changeover plan is posited on the fact that the euro will be adopted in at least 11 countries and that we have to be prepared for it. We need a changeover plan to deal with both our trading
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relationships with euroland and in order to present a realistic alternative if and when a decision is taken by the people of this country.
Lord Shore of Stepney: My Lords, recognising my noble friend's deep and abiding affection for the euro, but recalling and recognising the demands for collective ministerial responsibility, would it be unfair to ask him whether, if he were asked today how he would vote in a referendum on the euro, he, like the Prime Minister, would say "No"?
Lord McIntosh of Haringey: My Lords, my position is the position of Her Majesty's Government. I do not know why so many noble Lords are determined to get me to say something different when they know very well that I will not do so. If I say the same thing often enough perhaps at some stage someone will start to believe it. If not, I shall cut a disc in time for it to get into the top 10 for the Christmas season.
Lord Barnett: My Lords, does my noble friend agree that, however irrational we may be on either side of the argument, the plain fact is that 11 member states have agreed to use the euro and in just over a year it will be their currency? Does he also agree that my noble friend the Prime Minister would not say "No" to voting about the euro tomorrow?
Lord McIntosh of Haringey: My Lords, I am always warned about my noble friend Lord Barnett; lie asks tricky questions. The answer is that the Prime Minister said "today" and not "tomorrow".
Lord Marsh: My Lords, does the Minister agree that most companies which trade internationally are perfectly capable of switching from one currency to another currency? Some 75 per cent of British companies have no business overseas anyway.
Lord McIntosh of Haringey: My Lords, all I can say is that those companies which do trade with Europe have welcomed the national changeover plan. There has been a very good take up of the material available and industry bodies, both individually and collectively, have welcomed it.
Lord Tebbit: My Lords, does the Minister think it was good value that a health authority as small as Buckinghamshire was faced with expenditure of £1.5 million this year on preparing for the euro? Is that good value for money in the National Health Service?
Lord McIntosh of Haringey: My Lords, is the noble Lord, Lord Tebbit, saying that the Buckinghamshire health authority spent £1.5 million on preparing for the euro? I should be glad to have further evidence of that. My information is that the public sector is making small, targeted investments as part of the modernisation of public services in order that we can make a smooth and cost-effective transition. If the

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noble Lord, Lord Tebbit, has more detailed information on the Buckinghamshire health authority, I shall be pleased to hear it.
Lord Newby: My Lords, does the Minister agree that if we are to avoid further major losses in manufacturing—such as we saw yesterday in South Wales—we need a clearer statement of policy from the Government in regard to the timing of entry into the euro, rather than contradictory statements by the Prime Minister which seem to be based on the findings of his latest focus group?
Lord McIntosh of Haringey: My Lords, business needs consistency in policy and consistency in achievement. This has been confirmed by the success of our economic policy over the past three-and-a-half years. Neither the business community nor anyone else would thank us for veering from one side to the other on any of these issues. There is nothing inconsistent between what the Prime Minister said and the Government's policy since 1997.
Lord Tomlinson: My Lords, does my noble friend agree that the essential difference between the Government's policy and the policy of noble Lords opposite is that the Government will trust the British people with a decision when the time is right whereas they would keep the decision to themselves by ruling out, in all circumstances, the possibility of joining the euro in the next Parliament?
Lord McIntosh of Haringey: My Lords, my noble friend is right. It has been the consistent policy of the Government since 1997 that when the economic conditions were right we would make a recommendation to Parliament and then to the people of this country. I have heard no such suggestion from the Opposition.

Tributes to the late Lord McConnell
3.7 p.m.
Lord Falconer of Thoroton: My Lords, I should like to say how sorry I am that Lord McConnell died yesterday. Had he not died, I am sure that he would have been with us today in his customary place on the Cross Benches, taking a close interest in all Northern Ireland matters and contributing to public life as he has done for the past 50 years.
Lord Glentoran: My Lords, I am grateful to have this opportunity to pay a short tribute to Lord McConnell, who was known as Brian to his friends. It is particularly pertinent for me because he was a link with the old past. He was a friend of my grandfather; he served in the Stormont Parliament with my father; and ever since I have been in the House he was of unfailing good company, help and assistance in trying to keep me "on the right way of it", as we would say in Northern Ireland affairs. He will be remembered by his
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friends as a man of great warmth with his own special brand of humour; a man who gave his life to the service of the people of Northern Ireland.
Lord Smith of Clifton: My Lords, the Liberal Democrats associate themselves with the tribute paid by the noble and learned Lord, Lord Falconer, to the late Lord McConnell. When I entered the House three years ago, I got to know him well while flying across from Belfast to London. I appreciated both his initial welcome and his companionship thereafter. He was a diligent Member of your Lordships' House right up to the end of his life. He will be missed by many on all sides of the Chamber.
The Lord Bishop of Lincoln: My Lords, I had the privilege of sitting next to Lord McConnell at lunch in the Members' Dining Room yesterday. We had a gracious and perceptive talk not only about the place of bishops in your Lordships' House but about the situation in Northern Ireland. We on the Bishops' Benches associate ourselves with the remarks and tribute of the noble and learned Lord, Lord Falconer.
Lord Molyneaux of Killead: My Lords, may I, on behalf of what one might call the Northern Ireland contingent, express sincere thanks to those noble Lords who have paid tribute to our late colleague. As we all know, he showed great courage in fighting a battle against ill health. He will be sadly missed by all of us.

Police (Northern Ireland) Bill
3.9 p.m.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do now again resolve itself into Committee on the Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 48 [Service by members of the Police Service of Northern Ireland Reserve with other police services]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 172:
Page 24, line 42, leave from first ("the") to end of line 43 and insert ("Police Service of Northern Ireland of references to the Police Service of Northern Ireland Reserve").
On Question, amendment agreed to.
Clause 48, as amended, agreed to.
Clause 49 [Registration of associations]:
The Chairman of Committees (Lord Boston of Faversham): In calling Amendment No. 172A, I must tell the Committee that if it is agreed to, I cannot call Amendments Nos. 173 to 177.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 172A:
Page 25, line 3, leave out from second ("a") to end of line 16 and insert ("notifiable membership if membership of the organisation in question might reasonably be regarded as affecting the officer's ability to discharge his duties effectively and impartially.
(1A) The Chief Constable may give guidance to police officers in connection with notifiable memberships.
(1B) Before issuing any guidance under subsection (1A), the Chief Constable shall consult—

(a) the Board;

(b) the Secretary of State; and

(c) the Northern Ireland Human Rights Commission.").

The noble and learned Lord said: In moving Amendment No. 172A, I shall speak also to other amendments to Clause 49 standing in my name. Before doing so I apologise on behalf of the Government for the late tabling of this group of amendments which significantly alter the Government's approach to Clause 49. En summary, they replace the current list of specified "registrable associations" with a generic reference to "notifiable membership" and enable the Chief Constable to issue guidance to police officers in this connection.
The Government have received many representations from all sides about the listing of various organisations. There was a uniform reaction from those associated with listed bodies which saw the listing as pejorative, although it was not intended to be. This reaction is, admittedly, unsurprising, but the Government have found themselves with the almost impossible task of having to come up with a definitive list of organisations which might affect an officer's ability to discharge his duties.
The Government's conclusion is that we must place the burden of responsibility in the hands of the organisation most affected—the police. The new provisions put greater emphasis on the judgment of individual officers, with assistance from guidance issued by the Chief Constable. In turn the Chief Constable will be assisted by an obligation to consult the board, the Secretary of State and the Northern Ireland Human Rights Commission.
I turn to the details. Amendments Nos. 177A, 177D, 178A and 184B are consequential on Amendment No. 172A, replacing references throughout Clause 49 to "registrable association" with references to "notifiable membership". Amendment No. 184D removes a reference later in the clause to the listed organisations.
Amendments Nos. 177B, 177C and 177E substitute references to "belief" in the context of an officer's notifiable membership of an organisation for existing references to "fact". This is also a consequence of the removal of the specific list of organisations.
Amendment No. 184C is, again, made in consequence of the main change to Clause 49. It removes subsection (11)(b) which requires the Chief Constable's annual report to contain an assessment of the extent to which officers have complied with the duty to register their associations. This is a less appropriate requirement given the removal of a cut and dried list.
Amendment No. 177F removes the offence of knowingly giving false information. Regardless of other changes, the Government have concluded that this is heavy handed and that the appropriate sanction lies in disciplinary arrangements. We do not need to provide for this in the primary legislation.
Amendments Nos. 179A, 181A and 182A clarify the provisions relating to disclosure. Amendment No. 179A makes it clear that only those who are entitled to make disclosure can do so and only for the purposes specified in subsection (7). Amendments Nos. 181A and 182A define more clearly, in relation to police support staff and the board and its staff, who is caught by subsection (7). Amendment No. 17913 removes the proviso whereby only information relating to a senior officer may be disclosed to the board. If we did not make this amendment there would be potential conflict with the board's power to obtain reports. However, the Government do not envisage that the board would require reports about individuals' membership and certainly not lists of' such membership. Amendments Nos. 183A and 184A correct drafting errors.
I invite the Committee to accept the amendments. They obviously have a substantial effect on amendments tabled by other noble Lords in relation to this matter. I hope that in the light of what I have said there will be no need to move any of the associated amendments. I beg to move.
3.15 p.m.
Lord Molyneaux of Killead: Perhaps I may comment on what the noble and learned Lord said and refer also to Amendment No. 173. We welcome the Government's concession contained in the Minister's statement. He has greatly increased the standing of your Lordships' House by setting aside the truly ridiculous form of words which stood as a formula in Clause 49. Amendment No. 173 resembles very closely what the Minister said. We fully appreciate that the Minister cannot be held accountable for such clumsy drafting. I am sure he has identified those objectionable sections which are referred to in our amendment.
The Independent Loyal Orange Institution should never have been on the list. It is an evangelical body devoid of any political connection whatever. The other mysterious reference is to "the Masonic Lodge". I myself, unfortunately, am not a member of the Masonic order. Clause 49(1)(e) refers to "the Masonic Lodge", I should like to ask to which Masonic lodge throughout the civilised world does that refer? It is not "a Masonic Lodge"; the wording says "the Masonic Lodge".
I can speak with slightly greater authority on Clause 49(1)(h)—the Royal Black Preceptory—because I had the honour to be the worldwide leader of that institution for a good many years. The term "the Preceptory" could mean my own preceptory, no. 274, which has 33 members. It is one of 733 preceptories throughout the Commonwealth, the United States, where the members pay their allegiance to the head of

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that state, Ghana, and Togo, where the members respect their president. I cannot understand how such ridiculous phrases crept into the clause. I do not know whether the draftsman was unsupervised or given free rein, but it would be doing a disservice not to heed the lesson of this draftmanship and ensure, for the sake of all of us—Government particularly—that there is no repetition.
Lord Pilkington of Oxenford: I tabled Amendment No. 176. I can only echo the words of the noble Lord, Lord Molyneaux. The problems with the clause began in the other place where it was really a tit-for-tat provision and very unedifying to the dignity of Parliament.
I tabled my amendment before the Recess as I felt that it was unjust and wrong that members of Opus Dei should have to declare their membership if they were to become members of the police force, the assumption being that one might show prejudice and fail to fulfil one's duties.
It may surprise noble Lords that, as a clergyman of the Church of England, I have considerable knowledge of Opus Dei. It has shown generosity in asking me to participate in its philosophical seminars. I have also given talks to various of its groups. As far as concerns Britain, it is a devotional and Christian group whose object is to encourage lay people to live a fully Christian life in society. It is, like many evangelical groups in the Protestant Churches, dedicated to an ardent form of Christianity. That may not appeal to some pragmatists. But the devotion of its members is obvious.
So far as I have seen, Opus Dei plays no part in British politics. I should imagine that the members I have spoken to reflect the whole spectrum of political opinion. As in many evangelical groups—these are evangelical Catholics—the very nature of their devotion would encourage any member who held public office to act with integrity and impartiality. Therefore, although I am delighted that the Government have withdrawn the clause, like the noble Lord, Lord Molyneaux, I think it is very unfortunate that such a clause was ever placed in a statute before a British Parliament. Why it was not stopped in the other place I cannot imagine. It really is quite a disgrace. The Hansard reports of proceedings in Committee in another place when this provision was debated are not a good reflection on Parliament. It would be a caricature of justice to suggest that the ideals of Opus Dei would not be followed if someone became a member of the police force.
I am happy with the government amendment, but I would be shocked and would raise the matter again in this House if Opus Dei were to be designated as an organisation of which members of the police force had to declare membership. If it were so designated, the Evangelical Alliance and a whole range of other bodies would have to be designated also. When the Chief Constable considers this matter, he should consider the very poor drafting in the House of Commons and
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pay regard to what the noble Lord, Lord Molyneaux, and I have said. In no case should political tit-for-tat be used in matters of genuine Christian dedication.
Lord Fitt: I congratulate the Government on their withdrawal of the qualification list. One has only to read the report of the debates in Committee in another place to realise that there was a totally tribal approach to this issue. Five of the listed organisations could be classified as non-Catholic; two of them could be classified as Catholic. If one reads the report of the debates in another place one can sense the animosity and hostility of those taking part. One must therefore congratulate the Government on removing the disqualifications.
Over the past few weeks tremendous pressure has been put on different people to ensure that particular organisations would not be included in the list. I am sure that the Masonic Lodge and the Orange Lodge were campaigning for their members to do that. I certainly know that Opus Dei organised an absolutely brilliant Catholic campaign to ensure that Opus Dei was not included. Now that those organisations have been removed, there are rumours to the effect that when the Bill returns to the House of Commons an attempt may be made to reinsert the disqualification of some of them. I hope that the Government will resist that attempt.
Although the Government are doing away with the list, Clause 49 provides that a constable will have to register his interests. How does one define "his interests"? Without being frivolous—this can be a serious matter in Northern Ireland—does support for Linfield Football Club, or Glasgow Rangers Football Club or Glasgow Celtic Football Club have to be registered? What about a darts match in the middle of Glasgow or a skateboarding contest in the Falls Park in Belfast? Those could all be taken as registrable issues. Who will have to decide? Let us suppose that the Chief Constable had evidence that someone attended a match at Linfield or Rangers and in a very hostile manner condemned his team's opponents. Would that person be acceptable?
I have spoken to policemen. They would like to know what will be regarded as registrable membership. This could be taken to ridiculous lengths and cover darts clubs, skateboarding, roller skating and so on. The Government should take this issue seriously. They should be certain about what will be regarded as registrable membership. Will any instructions be given to the Chief Constable, or will he take the decision in the light of his experience in Northern Ireland?
Lord Alton of Liverpool: I intended to speak in favour of the amendment standing in the name of the noble Lord, Lord Pilkington. The Committee should be indebted to the noble Lord for raising this important question. Like many other noble Lords, I have made representations to the Government about the undesirability of creating this kind of list and picking out certain organisations, some of which are, as the noble Lord, Lord Pilkington, said, pietistic;

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others, as the noble Lord, Lord Molyneaux, said, may be organisations of purely social activity. Indeed, as the noble Lord, Lord Fitt, said, they may be sporting organisations. What has been highlighted is the danger of creating such lists in the first place.
In the other place the Government were trying to highlight the danger of people using their membership of organisations to give some kind of secretive support to other people who might be seeking preferment or employment—in the police force or in any aspect of public life in Northern Ireland. One has to tread with great care in this whole area. Many of the measures which already exist, particularly those dealing with discrimination, can be used quite effectively to combat that kind of insidiousness. I hope that the Minister will look at those tools as a way of dealing with the abuse of power, the abuse of old boy networks or the abuse of informal liaisons and relationships that can take place because of networking inside one part of the community or another. It is against all our interests to accentuate any sense of tribalism.
This brief debate today has illustrated that we would be in grave danger of creating something that could accentuate a sense of tribalism. For that reason, we should all be grateful to the noble and learned Lord, Lord Falconer, for having walked with such sensitivity around these issues and for having brought before the Committee an amendment with which I hope that we and Members of another place can agree. If Members of another place have any sense, they will realise that this amendment has a great deal of wisdom to commend it.
The Lord Bishop of Wakefield: I had intended to speak in support of the amendment of the noble Lord, Lord Pilkington. I am most grateful, as I know my colleagues on this Bench will be, for the statement that has been made by the noble and learned Lord, Lord Falconer. I entirely endorse all the points that have been made. It would be most unfortunate if anything which came through this House or from another place were to exacerbate the tribalism that has already been spoken of. All of us who follow any denomination within the Christian faith regard the way in which our religion has been so used in such a tragic manner in Northern Ireland as something that we would want in every way to avoid in the future. I hope that lessons will be learnt from the unfortunate way in which this legislation was drafted. I hope, too, that noble Lords will support what the noble and learned Lord, Lord Falconer, has said and will support his amendment.
3.30 p.m.
Viscount Cranborne: Perhaps I may apologise to the Committee for not being present on Monday. I fear that I was indisposed and I therefore come in rather late in the proceedings at this stage. I very much welcome the Government's flexibility on this point. I intervene purely to seek a little clarification from the noble and learned Lord when he replies to the debate.
He will have noted—none is more likely to have done so—the commentary by the Delegated Powers and Deregulation Committee. Referring to Clause 49,
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the Select Committee makes it perfectly plain, in paragraph 7 on page four of its report, that Clause 49(1) and (2) as originally drafted incorporated a Henry VIII power.
The report makes it clear that any amendment removing, or indeed amending, the list of organisations would be of such political importance that it should be done by affirmative instrument. That judgment is clearly shared by the Government and by this Committee.
The importance and sensitivity of this matter has been recognised on all sides. Are the Government satisfied, therefore, that sufficient arrangements are in place to ensure public confidence in the judgment of those who will issue the guidance on notifiable memberships—in other words, the Chief Constable—and those whom he will consult: the board, the Secretary of State and the Northern Ireland Human Rights Commission? Some reassurance should be given by the Chief Constable and those three bodies to the public at large about precisely which organisations will be categorised as notifiable organisations under the Bill, and what amendments will be made to the list.
Although we have properly accepted the Government's good sense in amending Clause 49 as proposed, the fundamental difficulty remains; it has been removed from the forum of Parliament and placed in the hands of the Chief Constable and those whom he has to consult. We still have a highly sensitive matter which could all too easily become a matter of some secrecy, particularly in Northern Ireland. That may or may not be a good thing. The more the publicity that is attendant on such judgments, the more likely it is that there will be controversy. Equally, the more secrecy there is, the more the conspiracy theories will flourish and, if in doubt, it is much better for the matter to be made public.
What arrangements do the Government have in mind for public accountability for actions relating to the list? When the Chief Constable comes to compile the list, will it mirror precisely that presently set out in Clause 49(1)(a) to (h), or does the Chief Constable have it in mind to change that list? If he does, how will he publicise the changes? What reasons will he give? What are the implications of the Chief Constable making that judgment? I imagine that, mutatis mutandis, the implications would be much the same as they would be for debate in this place under an affirmative resolution as proposed by the Select Committee.
Lord Glentoran: I, too, am delighted to welcome the amendment. When I was in southern Spain, I was approached by a number of Roman Catholics from various parts of the hierarchy of the Church who knew of this part of the Bill and were very concerned about it. Therefore, I began to take advice about it.
I believe that the Government have got matters about right in the amendment. I have listened to the remarks of my noble friend Lord Cranborne. In discussing the amendment yesterday with colleagues in preparing for today's Committee stage, we began to go

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down the thinking route that my noble friend has clearly chosen. After some time, we arrived at the opinion that at this stage the Government had got it right. I must admit that in our thinking time—which was not very long—we were unable to improve on the government amendment. When one considers how long it is hoped that the Bill will last, and, if it is successful, how the whole police force will evolve and develop, the amendment is a considerable improvement on the clause as presently drafted. I have no difficulty in supporting it.
Lord Hylton: Perhaps I may say a brief word of welcome for the amendment and those that are consequential on it. The phrase "might reasonably be regarded" is wisely and prudently chosen. What we are all seeking to achieve is impartiality in the discharge of police officers' responsibilities. I hope that may be of slight assistance to the noble Viscount, Lord Cranborne.
Lord Eames: I, too, regret that, owing to responsibilities in Northern Ireland, I was unable to present in this place on Monday. Had I been here, I should have wanted to say simply that I believe that the vast bulk of people in Northern Ireland want to see an effective, impartial police service which will have the respect and accountability to the public that are essential for the future of a stable society. For that reason, I am delighted that the Government have introduced this amendment. I could not see a single section in the original wording of the Bill that would mitigate against the principle I have enunciated more than this.
However, perhaps I may mention one aspect to the Minister and his colleagues. Experience in Northern Ireland has shown that it is so often "situational ethics" which bring to the forefront a question of principle. I wonder whether the guidance given to the Chief Constable on drawing up a list of organisations or interests which may or may not militate against fair membership of the police service will relate chiefly to situations in which a person's loyalty is brought to the fore, and his reaction will then be to consider a list. Great caution is needed to ensure that adequate guidelines are given by Parliament to allow the Chief Constable adequate assurance, confidence and powers to deal with actual situations. Many of the organisations on the list that it is now proposed to withdraw will probably find that their membership will carry a public nuance in terms of demonstrations or conflict on the streets. Irrespective of some of the religious organisations mentioned in the original list, that cautionary note needs to be sounded. But I, too, greatly welcome the government amendment.
Lord Monson: I apologise if the noble and learned Lord, Lord Falconer, has dealt with this point. Unfortunately, I could not be present until just after he had finished speaking. In replying, will he tell us what will be the practical consequences if a police officer finds himself classified as a notifiable member of one
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or other organisation and therefore, by definition, is judged not to be fully able to discharge his or her duties effectively and impartially? Will he be dismissed from the service? It does not seem so. Will his or her promotion prospects be adversely affected? That seems most probable. Will he or she have to prove impartiality despite membership of the organisation in question? Will the noble and learned Lord give us some guidance on this point?
Lord Cooke of Islandreagh: I join other Members of the Committee in congratulating the Minister on his amendment to Clause 49. It comes as an enormous relief to us all. I cannot imagine another instance in which religion and politics would have become so mixed up; its effect would have been simply awful.
I wish to speak to Amendments Nos. 180, 181, 182 and 183 which make minor changes to wording and bring about an improvement to the clause. Amendment No. 180 deals with Clause 49(7)(e) and suggests that "does" should be substituted by "could". I believe that that constitutes an improvement. Amendment No. 181 deals with the requirement that the need to have information is,
"in the course of their employment".
I believe that it is desirable to prevent requests for information on a whim. Amendment No. 182 is covered and much improved by the noble and learned Lord's amendment.
I believe that Amendment No. 183 introduces an improvement. It is important to make clear that an issue of bias is the only valid reason for the disclosure of information. It should not occur for any other reason. Amendment No. 184 is also important from the point of view of not allowing information to be used for anything other than proper purposes. The information must be obtained only by someone to whom the subsection applies. I believe that the amendment would assist the noble and learned Lord in his objective of improving the clause.
Lord Hayhoe: I, too, warmly welcome the Government's amendment. I hope that when it is carried it means that this absurd, divisive and very partial list will be totally and utterly forgotten. I do not believe that the Chief Constable should pay the slightest attention to what was included in the original draft of the Bill.
Indeed, we should consider the way in which those words got into the Bill. As my noble friend Lord Pilkington mentioned, changes to the original draft were made following a poor debate in Committee in the other place. The amendment was tabled by the Government but, under a guillotine procedure, no debate took place on the clause at Report stage. As the noble Lord, Lord Molyneaux, said, surely that underlines the immensely important role played by the House of Lords when legislation has been rolled through the House of Commons with no debate and no possibility of the issues being given proper consideration.

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Therefore, I believe that this short debate—and, indeed, the Government's action in bringing forward this amendment—has once again underlined the importance of the House of Lords. I hope that we shall hear nothing more of this absurd and stupid list.
Lord Elton: Listening to this debate one has the impression that the original proposal was so bad that anything whatever must be vastly better. We should not assume that whatever is vastly better is perfect. Prompted by my noble friend Lord Cranborne, I am in some doubt as to how the proposal will work. There will still be a list but it will not be published. It will be drawn up by the Chief Constable. The noble and learned Lord shakes his head; I hope that he will confirm that audibly in a moment.
It appears to me that the Chief Constable will have to decide which of the organisations should be notifiable. The Secretary of State will still be involved, although not publicly, in conference with the Chief Constable. Parliament will be removed from the process— a relief, I believe, when we see how Parliament has behaved in the matter thus far. However, the fact is that the contents of the list will become public by some means or other, simply from the experience of constables who have found themselves subject to it. I hope that we shall be told how the process will work and how it will be controlled.
3.45 p.m.
Lord Rogan: I wish to speak to Amendment No. 178. In doing so, I shall pose a question. How should we discipline an officer who knowingly has given false information with regard to "the register" and what we hope is to be "notifiable membership"? Does the Committee believe that giving false information, wrong as it is, is worthy of a summary conviction—a criminal conviction in the magistrates' court? Wrong as I believe that it is to knowingly give false information to an employer, a superior or a boss, I do not believe that such an act is worthy of a criminal conviction, especially when it is a police officer who gives false information to the Chief Constable, not about his work but about his personal life.
Lord Falconer of Thoroton: I apologise for interrupting, but one effect of the amendment is to remove the part of the clause that would make the provision of false information a criminal offence. Instead, as I said in the course of my remarks when I introduced the amendment, if false information is given it will now simply be an internal disciplinary matter with which the Chief Constable will deal. It would not be appropriate for that to be on the face of the Bill.
Lord Rogan: I am grateful for that clarification. However, surely it would be much more sensible for a police officer to face the same disciplinary procedure in this case as he would in any other disciplinary matter? In other disciplinary matters, which I, for one, cannot distinguish from this one, officers up to and
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including the rank of superintendent are disciplined by the Chief Constable. Officers above the rank of superintendent are disciplined by the police authority and, in future, will be disciplined by the policing board. Therefore, why cannot the same be true of this disciplinary matter?
I suggest that this excessive measure, coupled with the soon-to-be-gone list, was designed to demonise perfectly lawful organisations. Fortunately, after listening to reasoned argument from Unionists both in this House and in another place, the Government have reconsidered the ridiculous list. I hope that, after listening to the arguments today, the Minister will reconsider this excessive penalty for false information. My doubts about the penalty—a criminal conviction—are founded on more than simply my belief that the regular disciplinary procedure would be infinitely more appropriate.
I believe that Clause 49(5) would fall foul of the Human Rights Act which we are all aware has only recently come into force. Article 8(1)of the European Convention on Human Rights guarantees,
"respect for the right to a private life".
Although Article 8(2) of the ECHR allows that right under Article 8(1) to be qualified, in this case for the punishment, which is the means of achieving the objective, I do not believe that that qualification would be permissible as it is the effective criminalisation of lawful organisations.
Nowhere in the Patten report was it suggested that an officer would be subject to a criminal sanction with regard to the register of interests proposed in recommendation 126. Any logical approach to this clause will repeatedly bring us to the same conclusion.
There is currently in place a disciplinary code for the police in Northern Ireland. This matter is a disciplinary matter. Therefore it should be dealt with in the same manner, before the same tribunal and with the same punishment as any other disciplinary matter. I hope that the Minister will seriously reconsider this ludicrous extension of the criminal law in Northern Ireland.
Lord Falconer of Thoroton: I am grateful for the welcome to the amendment tabled by the Government which removes the list included in another place, and to the approach taken by the Government which, in effect, puts greater emphasis on the judgment of individual officers with assistance and guidance issued by the Chief Constable. In addition, the Chief Constable will be assisted by an obligation to consult the board, the Secretary of State and the Northern Ireland Human Rights Commission before he issues his guidance.
Perhaps I can deal with the specific points raised in the course of this short debate. First, it was asked how it will work in practice. Stage one is for the Chief Constable to consult the three bodies specified in the amendment, the board, the Human Rights Commission and the Secretary of State; he may also consult any other person he wishes, and no doubt he will. Whether he will issue a definitive list, whether he

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will give more general guidance, whether he will deal with it by way of example is a matter for the Chief Constable to decide.
As I indicated to the noble Lord, Lord Rogan, the criminal offence has been removed in relation to individual officers who fail to comply with the obligation. What is the appropriate disciplinary course, if any, in the context of non-disclosure is a matter for the Chief Constable to decide in accordance with existing disciplinary procedures; it is not a matter for this Chamber to deal with on the face of the Bill.
That is probably as far as it is sensible for me to go in relation to the working of the power. Perhaps I may deal with two specific points raised by the noble Viscount, Lord Cranborne. First, he asked whether the Chief Constable's guidance will be published. The answer is that it will. As I indicated, he may not produce a list. It is a matter for him to determine the form that his guidance takes. Secondly, the noble Viscount asked about the advice of the Delegated Powers and Deregulation Committee. The Secretary of State's order-making power has gone completely in relation to this clause as a result of the amendment. In those circumstances the question does not arise.
Finally, I deal with the point raised by my noble friend Lord Fitt, who said that there are rumours that the list may be put back in the House of Commons. I make it clear that the Government have no such intention.
I deal now with Amendments Nos. 180 to 183, which collectively seek to tighten the disclosure provisions. Amendment No. 180 substitutes "could" for "does" in subsection (7)(e) in relation to summaries of statistical information made by the Chief Constable. It suggests that no summary should be disclosed if it could be used to identify an individual. The Government's legal adviser says that that would be an extremely difficult standard to meet in practice. Members of the Committee will acknowledge that the Chief Constable is well informed about the security situation and the need to protect sensitive information. The Government have confidence in his ability to judge what should be released.
Amendment No. 184 seeks to narrow the circumstances in which disclosure of information is defensible. As regards Amendments Nos. 181 and 182, the Government responded to concerns raised in Committee in another place with government Amendments Nos. 179A, 181A and 182A. I note we seem to be taking different directions to achieve the same aim as regards Amendment No. 182 and government Amendment No. 181A. Amendment No. 184 will not work. It seeks to restrict disclosure to cases where there is an issue of bias. Presumably the Chief Constable would have to decide whether such issues were involved in all the circumstances, even where a complaint was involved. That tramples on the ombudsman's jurisdiction. However, the Government are prepared to accept Amendment No. 184 in principle, but it may have been overtaken by events.
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For all the reasons I have given, I ask the Committee to accept the amendments in my name.
Lord Monson: Before the noble and learned Lord sits down, can he say what will happen to a police officer who, despite all the safeguards being introduced, gets on to the black list—or perhaps grey list would be more accurate? How will it affect his or her career?
Lord Falconer of Thoroton: The purpose of Clause 49 is that there be disclosure of membership of a notifiable organisation. That is all that the clause provides. The Chief Constable will determine what sort of disclosure should be made. But that is what the clause provides. It is saying no more than that there is a need for disclosure.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 177A to 177F:
Page 25, line 18, leave out ("registrable association") and insert ("notifiable membership").
Page 25, line 18, after ("officer") insert ("believes he").
Page 25, line 19, after ("he") insert ("believes he").
Page 25, line 19, leave out ("registrable associations") and insert ("notifiable memberships").
Page 25, line 19, leave out ("fact") insert ("belief").
Page 25. line 25, leave out subsection (5).
On Question, amendments agreed to.
[Amendment No. 178 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 178A and 178B:
Page 25, line 35, leave out ("member") and insert ("police officer").
Page 25, line 37, leave out ("registrable associations") and insert ("notifiable memberships").
On Question, amendments agreed to.
[Amendment No. 179 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 179A and 179B:
Page 25. leave out line 41 and insert ("is to be disclosed unless the person making the disclosure is a person to whom this subsection applies and the disclosure is made").
Page 26, line 2, leave out ("in the case of information relating to a senior officer,"),
On Question, amendments agreed to.
[Amendments Nos. 180 and 181 not moved.]
The Chairman of Committees: I must inform the Committee that if Amendment No. 181A is agreed to, I cannot call on Amendment No. 182.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 181A:
Page 26, line 14, leave out ("a member of the Board;") and insert ("the Board, each of its members and the members of its staff;").
On Question, amendment agreed to.
[Amendment No. 182 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 182A:
Page 26, line 15, at end insert ("engaged in carrying out on behalf of the Chief Constable his functions under this section").
On Question, amendment agreed to.
[Amendment No. 183 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 183A:
Page 26, line 20, leave out ("(7)") and insert ("(9)").
On Question, amendment agreed to.
[Amendment No. 184 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 184A to 184D:
Page 26, line 21, leave out ("that subsection") and insert ("subsection (7)").
Page 26, line 24, leave out ("registrable associations") insert ("notifiable memberships").
Page 26, line 26, leave out paragraph (b).
Page 26, line 29, leave out ("mentioned in subsection (1)").
On Question, amendments agreed to.
Clause 49, as amended, agreed to.
4 p.m.
Clause 50 [Code of ethics]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 184E:
Page 26, line 32, leave out from ("ethics") to end of line 33 and insert ("for the purpose of—

(a) laying down standards of conduct and practice for police officers;

(b) making police officers aware of the rights and obligations arising out of the Convention rights (within the meaning of the Human Rights Act 1998).

( ) In preparing the code, the Chief Constable and the Board shall have regard to the terms of the declaration set out in section 38(1).").
The noble and learned Lord said: In moving government Amendment No. 184E, I shall speak to other government amendments in the group. Amendment No. 184E makes two changes to Clause 50(1). The first is to meet more closely the recommendation in Patten that the code should integrate the European Convention on Human Rights into police practice. The other is made in response to concerns that, in drawing up the code of ethics, the Chief Constable and the board should have regard to the wording of the new declaration attested by constables under Clause 38.
Government Amendment No. 188 requires the Secretary of State to reflect the code of ethics in discipline regulations "as far as is practicable". This replaces wording which required the Secretary of State to take whatever steps he "considers necessary" to do this. This is a slight change which the Government have made after listening to concerns that the existing wording left too much discretion in the hands of the Secretary of State.
Government Amendment No. 189 is a technical amendment which corrects an erroneous reference to regulations taken as a whole. It is only necessary for the Secretary of State to reflect the code in conduct and discipline regulations, not in regulations dealing with pensions, for example, as the previous wording suggests. I beg to move.
Lord Cope of Berkeley: The Government's amendments are entirely understandable and can be supported. I want to speak to Amendment No. 185 which stands in my name. It seeks to remove Clause 50(4)(c), which obliges the board to consult the ombudsman, as well as the other organisations, before issuing a code of ethics. The ombudsman is an extremely important person who should be supported but our view is that his job is to deal objectively with complaints about the behaviour of policemen and others. Our concern is that she—at some stage it may be he—may be compromised in looking objectively at a complaint because she will have had some responsibility for the wording in the code.
It is not a major point but it is our view that it would be better if the ombudsman were not involved in drawing up the code. She would then be able to be more objective when later judging cases and would be seen to be so.
Lord Archer of Sandwell: I rise not to take issue with either of the noble Lords who have spoken, although I observe that at a later stage in our deliberations we shall be discussing the functions of the ombudsman. I rise to speak to my Amendments Nos. 186 and 190.
It is to be hoped that the code of ethics will perform two functions, and they will be important. First, it should impress upon police officers that human rights are not just a mantra which they are required to chant before going into action. I hope that those responsible for training will inculcate in trainees an approach to the code not as one more document on which they will have to answer questions but as integral to every thing which they do and teach.
I remember a safety expert impressing on me that safety is not one subject additional to all the others which an industrial trainee or someone learning to drive a vehicle needs to master and will be taught to them when its turn comes; it is integral to everything in the course. One does not teach someone to control and steer a vehicle in 11 lessons and then say, "Now we come to lesson 12, which is how to do it safely". Safety is part of everything we teach as we teach it and 1 hope that that will be the authorities' approach to human rights.
That is the internal function of the code. The second is the external one which ensures that as regards those outside the force—the community among which it is to operate—the rights of everyone will be taken seriously. That will largely depend on the content of the code but also on how seriously it is taken within the force. If it becomes a joke, it will be a very sick joke.
I therefore make two suggestions. First, as regards Amendment No. 186, the element in human rights which will make the greatest demands on officers—

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where they will be watched with the greatest suspicion, where the tripwires lie thickest, where mistakes will have the most tragic consequences—is that of equal rights. In that regard, those who draft the code will be in the greatest need of advice from people with experience and expertise. It is therefore surprising that the Equality Commission is not among the list of those with whom there is a statutory obligation to consult. My amendment seeks to rectify that omission.
As regards Amendment No. 190, it is essential that the code is not simply something which a police officer receives when he is recruited and then consigns to a draw in the sideboard for the remainder of his service. He needs to read it and to understand it. I am indebted to the Northern Ireland Human Rights Commission for this amendment. It would make a failure to comply with the code a disciplinary offence. If that is not done, it is certain to raise questions in the minds of the community as to how far all the talk about human rights is a placebo. Therefore, I believe that it should have the status of a disciplinary requirement.
Lord Monson: Perhaps I may put a question to the noble and learned Lord, Lord Archer of Sandwell. It is not a rhetorical question; I should like to hear the answer if he knows it. Is there any other country in the world whose police force, dealing as it does every day with crime and the seamier side of human nature, has to put human rights above every other consideration?
Lord Archer of Sandwell: First, I was not putting human rights above every other consideration. I was saying that it is one essential quality which the police are required to have in mind.
As regards the noble Lord's second question, I doubt whether any other police force in the world is confronted with quite so many problems as the police force of Northern Ireland.
Lord Smith of Clifton: I rise to support the two amendments tabled by the noble and learned Lord, Lord Archer of Sandwell, and to speak to my Amendment No. 187. It complements the second of the noble and learned Lord's amendments, Amendment No. 190. In addition simply to reading the code of ethics, officers should undertake to abide by it. The mere intellectual act of reading might not result in the desirable behavioural change which we all seek. Therefore, I ask the Minister whether or not we should firm up the act of reading by requiring constables to undertake to abide by the code of ethics.
Lord Eames: Of the amendments we are considering today, I can think of none more important than that tabled by the noble and learned Lord, Lord Archer, which is now before us. It is a consolation to many of us who want to see a fair and accountable police force in Northern Ireland that, as a result of the consultations which took place across the community during the drafting of the programme for training, the subject matter of the amendment was incorporated into the syllabus.
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I cannot imagine wording more important to the heart and soul of a police service for Northern Ireland than that contained in the group of amendments now before us. Let us leave aside the words "ethics" and "standards" and think only of the performance in the eyes of the community as a whole of a police service. There, in the cold light of day, standards and ethics for the service concerned will have to be judged. There will be situations in which it will be tested by the individual reaction of officers.
However, as I see the history of Northern Ireland, and judging by the experience that I have come through, as well as listening to those from both communities, those people have every reason to say that, in the past, they believe that they would have questioned some of the actions of the police. They deserve to hear that we take very seriously the way in which a code of behaviour is implemented in a police service for the future.
It is for that reason that I welcome what the noble and learned Lord, Lord Archer, said. I reiterate the importance of incorporating these principles in the training procedure. I should also welcome an assurance from the Minister that in whatever way this Bill eventually finds the light of day, strenuous efforts will be made to ensure that a code of ethics, a code of behaviour—indeed, a pattern for professionalism—is placed before the people of Northern Ireland in both communities in such a way that they can respect it and feel sure that it will be implemented with integrity and fairness.
Lord Fitt: I should like to support the amendment tabled by my noble and learned friend Lord Archer and to ask my noble and learned friend the Minister to clarify any misgivings that there may be about the code of ethics that everyone accepts is so necessary in police behaviour. It has been said that the young trainees entering the police force will be made aware of this code of ethics during the period of their training. However, can my noble and learned friend the Minister assure the Committee that this code of ethics will apply to officers who are currently serving in the force? Can he confirm that the same code of ethics will be applicable both to those young people who are entering the force and those who have been serving in the force for many years?
Lord Laird: I, too, wish to support the noble and learned Lord, Lord Archer of Sandwell, and to reiterate some of the earlier comments that have been made. This is an extremely important group of amendments. As someone who is interested in equality and in parity of esteem for all sections of the community, I certainly support the two amendments relating to equality.
I am chairman of Ulster Scots Agency in Northern Ireland, which is part of the cross-border body that has been set up, not at the behest of Ulster Unionists but at the behest of others. It is a cross-border implementation body. We are most interested in the entire process of human rights and equality. I am sure that Members of the Committee will be delighted to

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know that the noble Lord, Lord Molyneaux, and I attended a meeting in this building last Thursday which was organised by the Equality Commission for Northern Ireland. There was a very interesting discussion at that time about police services, both in Northern Ireland and in the Irish Republic. As "parity of esteem and total equality" is defined in the Belfast agreement, we were thrilled and delighted that the Equality Commission offered us total support in the reconstruction of the police force in the Irish Republic, which, as noble Lords know, requires to be reconstructed alongside the parameters of the Belfast agreement—an agreement relating to total equality and parity of esteem. That includes not just a change of name but also, in this case, a change in training and of structure. I believe that to be extremely fair. I wish to place on record my delight about the Equality Commission's enthusiasm in its support for our aims.
Lord Cope of Berkeley: I did not want to anticipate the amendment of the noble and learned Lord, Lord Archer, when I spoke earlier about the other amendment. However, I should like to put on record our support for Amendment No. 186.
Lord Falconer of Thoroton: Before I deal with this group of amendments, perhaps I may clarify some of the remarks that I made in relation to the previous group. I believe that I did not deal adequately with Amendment No. 184, tabled in the name of the noble Lord. Lord Cooke of Islandreagh. I hope that I made clear in my response that we are prepared to accept that amendment in principle. It would restrict the defence to the offence of wrongful disclosure. The noble Lord has in fact already withdrawn the amendment, but I should tell him that we shall return to the matter with an amendment after we have consulted counsel about the precise wording. I do not think that I made that clear at the time.
I turn to the amendments now before the Committee. Amendment No. 185 proposes that the ombudsman should be removed from the list of consultees. We are not prepared to accept that the ombudsman should be removed. Clearly she has a role to play in commenting on a code that deals with police conduct. Accordingly, we oppose Amendment No. 185. In Amendment No. 186, my noble and learned friend Lord Archer proposes that we consult the Equality Commission. We agree, and accept the amendment.
The area that has attracted the most prolonged debate is that covered by Amendment No. 190; namely, compliance with the code and with human rights obligations. We fully accept the importance of the code of ethics and compliance with the human rights obligations being meaningful. Indeed, our Amendment No. 188 requires the Secretary of State to reflect the code of ethics in discipline regulations, as far as is practicable. That indicates the importance that we attach to that consideration. It is also worth pointing out that the RUC is undertaking a very full programme of training on human rights, which involves consulting the Human Rights Commission
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and lay experts. It is also developing a wider human rights programme, which involves the auditing of procedures and practices. We should commend the work of the police in Northern Ireland in relation to that area.
Equally, the code of ethics is important. I entirely echo the sentiments expressed by the noble Lord, Lord Eames. Indeed, I know that that is the view that the Chief Constable also takes. I can assure the noble Lord that that will be taken forward with integrity. In his response to Patten, the Chief Constable said that the RUC wanted to secure the widest support for the code.
Having said all that, it is not appropriate, simply as a matter of practicality, to require police officers directly to comply with, or strictly abide by, the code of ethics. If one looks at the draft code of ethics annexed to the Patten report, one can see that it contains such aims as enjoining officers to,
"accept responsibility for self-development".
Therefore, in the event of non-compliance, it would be quite difficult to make that part of a code of ethics the subject of disciplinary procedure. We agree with the sentiments. We simply believe that, as a matter of practicality, it would not be right to make it a disciplinary matter.
I turn, finally, to the question posed by my noble friend Lord Fitt as regards whether the code will apply to serving officers. Yes, it will.
4.15 p.m.
Lord Archer of Sandwell: I am most grateful to my noble and learned friend for having listened in relation to Amendment No. 186, and for the other comments that he made about the intention to inculcate the sense of human rights. As to Amendment No. 190, well, you cannot win them all!
On Question, amendment agreed to.
[Amendment No. 185 not moved.]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 186:
Page 27, line 1, after ("Commission;") insert—
("( ) the Equality Commission for Northern Ireland;").
On Question, amendment agreed to.
Lord Smith of Clifton Lord Smith of Clifton had given notice of his intention to move Amendment No. 187:
Page 27, line 11, after ("read") insert (", undertaken to abide by").
The noble Lord said: Although the Minister did not address my amendment in his remarks, I shall, nevertheless, not move it.
[Amendment No. 187 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 188 and 189:
Page 27, line 15, leave out ("take such steps as he considers necessary to") and insert (", so far as practicable,").
Page 27, line 17, leave out ("(taken as a whole)") and insert ("relating to conduct or discipline").
On Question, amendments agreed to.
[Amendment No. 190 not moved.]
Clause 50, as amended, agreed to.
Clause 51 [Guidance as to use of equipment for maintaining or restoring public order]:
Lord Glentoran Lord Glentoran moved Amendment No. 190A:
Page 27, line 21, at end insert—
("( ) On issuing any guidance the Secretary of State shall inform the Ombudsman.").
The noble Lord said: Before I speak to this amendment, I should like to apologise to the Committee for the lateness of the tabling of this amendment. The amendment relates to government Amendment No. 191, which will shortly be moved by the Minister. Once again, it concerns the role of the ombudsman, but, this time, it relates to the role of the ombudsman in advising on guidance regarding the use of equipment for maintaining or restoring public order.
We on this side feel strongly about the amendment and the designated role for the ombudsman. We feel that the ombudsman should not get into a position of having ownership of this type of guidance to the police service. He should not be put in a position where he can be accused, perhaps while deliberating or giving the results of his deliberations, of having been part of the creation of the guidance and the operational decision-making process which led to the guidance.
I have some experience with the ombudsman for Northern Ireland. I had cause to make a complaint concerning a planning matter. Because of the distance that the ombudsman clearly is from departments concerned, I felt comfortable in talking to her, knowing and believing that her department clearly had an independent and clear-sighted role. At the end of the day—I probably would not have told the story if this had not happened—she found in my favour that the then DoE planning had been guilty of maladministration. She had had no part in the creation of the legislation which led to those planning laws.
It is important, and will become more so as time goes on, for the office of the police ombudsman to be seen to be clearly independent of the management and control of the police. The Minister discarded my noble friend's amendment to Clause 50. We shall certainly return to that. Guidance as to use of equipment for maintaining and restoring public order is a serious policing matter, not a matter for the ombudsman.
The purpose of moving the amendment now is to enable me to ask the Minister whether he will take more time to consider the position. Perhaps he would be good enough not to move his amendment today but to give us more time to discuss or debate it before Report, and to bring it back, for reasons which I also understand. Members of the Committee may have noted that I had discussions with the Minister. I am grateful to him and his officials for that opportunity. However, I ask him to be good enough not to move his Amendment No. 191 before Report. I beg to move
Baroness Farrington of Ribbleton: The Government feel that the ombudsman will have valuable experience
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to bring to the guidance from the role of the ombudsman in investigating complaints. However, we appreciate the point made by the noble Lord, Lord Glentoran. We will consider it further before Report, including in discussions with the ombudsman. Therefore, I shall not move Amendment No. 191. In the light of that undertaking, I hope that the noble Lord, Lord Glentoran, feels able to withdraw Amendment No. 190A.
Lord Glentoran: I thank the noble Baroness. I am delighted to beg leave to withdraw Amendment No. 190A.
Amendment, by leave, withdrawn.
Clause 51 [Guidance as to use of equipment for maintaining or restoring public order]:
[Amendment No. 191 not moved.]
Clause 51 agreed to.
Clause 52 [Regulations as to emblems and flags]:
[Amendments Nos. 192 to 198 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 198A:
Page 28, line 2, at end insert (";and
( ) any other person or body appearing to him to have an interest in the matter.").
The noble and learned Lord said: To some extent, this relates to Amendment No. 198. In that amendment there was a requirement to seek to require the Secretary of State to consult the Equality Commission before issuing regulations on flags and emblems. At present he is required to consult the board, the chief constable and the police association. I know that in the past we have resisted widening the list, but the Government have given further thought to the position. We now believe that there will be value in stating, on the face of the Bill, the scope for the Secretary of State to consult more widely. We think, therefore, that the scope should be widened for the Secretary of State, should he judge it appropriate to consult further people. That is the effect of Amendment No. 198A. I beg to move.
Lord Glentoran: I shall speak to Amendment No. 199 tabled in my name. This concerns the emblem of the Royal Ulster Constabulary. Aside from the proposal to change the name, it is difficult to think of anything in the Patten report that has caused so much hurt in the past to serving officers of the RUC and their families than the decision to scrap the cap badge of the force.
Patten states that there should be a new emblem for the force which is free of association with either the British or the Irish states. The purpose behind this was genuine: to try to depoliticise the police force. However, in our view the assumptions on which it was based are entirely false. The Belfast agreement settled the constitutional status of Northern Ireland. It made it clear that Northern Ireland would remain an integral part of the United Kingdom on the basis of the consent of a majority of the people who live there. I make no

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apology for repeating myself at this stage of the Bill. It did not create joint sovereignty, or, as the Patten proposals seem to imply, a kind of constitutional hybrid or halfway house between the British and Irish states.
Anyone who doubts that should ask the Northern Ireland Secretary why he is bringing forward an order in the Commons this evening and in this place a little later, to make clear that the only flag which will be flown from government buildings in the Province is the Union flag. It is not some newly-created emblem free of constitutional associations; it is the flag of the country of which Northern Ireland forms an integral part. The notion that the police service should be free of association with the symbols and emblems of the state in which it operates and whose laws it seeks to enforce is frankly not good sense.
Police officers serve the Crown. They uphold the Queen's peace. It is for that reason that every police force in the United Kingdom carries on its emblem the Crown, and so it should be in Northern Ireland. But in Northern Ireland the emblem of the force is not exclusive to one tradition. We already have a kind of compromise. Anybody charged with the task of drawing up an emblem that represented both traditions in Northern Ireland could hardly have come up with a better design than the current one. It embraces the Crown, representing the British tradition, and the Irish harp and shamrock, representing the Irish tradition. I simply fail to see how that can be deemed offensive to one section of the community or another. The emblem of the RUC could cause offence only to those who are opposed to what the Royal Ulster Constabulary represents; namely, the rule of law itself. They are the people who will see this measure as a victory. They have never supported the police who represent the thin green line between them and that which democracy denies them.
The Bill, as drafted, gives the Secretary of State the power to make regulations over an emblem for the police service following consultation with the board, the Chief Constable and the Police Federation. We welcome the commitment to consult and not to take a precipitous decision. But in reality we see no need for a new emblem at all. The existing one should be retained. It is a source of tremendous pride not just to those who currently serve in the RUC, but to retired officers and the widows of those who have been murdered wearing the proud insignia of that great force.
Our amendment will enable the existing RUC to carry on wearing its proud emblem and cap badge. Even if the Government succeed in their intention of giving the force a new operational name, it is all the more important to keep the badge and reinforce the continuity between the RUC and the newly named force that the Secretary of State is so keen to maintain. There is no evidence that the badge is a deterrent to Catholic recruitment. Retention of the badge would be widely welcomed within the RUC family and much more widely in the community. Nothing could better signify the fact that the RUC is not being disbanded
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than the maintenance of its badge and emblem. I urge the Government to take this amendment seriously and accept it.
4.30 p.m.
Lord Laird: I support the noble Lord, Lord Glentoran, and his very useful remarks in support of this amendment. Over the past few days there has been discussion in your Lordships' House about the state of opinion in Northern Ireland. We have talked about the state of unionist opinion. I wish to reiterate one point on the political side. In political terms this Bill has had a number of amendments, but not sufficient, in the opinion of anyone back home, to be supportive of the unionist community.
I said on Monday, and I underline it again, that if one wants a peace agreement, that can only be achieved with the support of both communities. The peace agreement can only be attained with the support of David Trimble. If we do not have his support because he cannot take his community with him, one will not get a peace agreement. I cannot see why that logic has not got through to the Government.
I endorse the remarks of the noble Lord, Lord Glentoran. The RUC badge is a symbol, if anything is a symbol, of the cross-community nature of activities on the island of Ireland. The harp incorporated in the badge is a symbol of the state of the Irish Republic. It is the official seal of the president of that republic. Therefore, why are we told that it is offensive? The only people to whom it is offensive are the fascist thugs who wish to degrade and demoralise the RUC at all costs.
I draw a comparison with the work I am involved in with the cross-border language implementation body and the other major cultural activities with which we are concerned. Whereas we are engaged in reshaping the police force on the southern side of the border as part of the Belfast agreement of parity of esteem and total equality, it is not our view that sovereignty in the Irish republic remains anywhere else but in the sovereign government of that republic except that which it has conceded to us in the Belfast agreement. There is not joint soveignity on both sides of the border or Northern Ireland. When we require the name of the Garda Siochana to become the Garda Siochana Hainin-Polis, which is required under the Belfast agreement, we still recognise that it will be the police force of the Irish Republic. I support this amendment.
Lord Molyneaux of Killead: I support the noble Lord, Lord Glentoran, and my noble friend Lord Laird. It has been pointed out that the emblem is that of law and order and nothing else. Earlier this week, I stated that no criminal loves a policeman. Therefore, all criminals want rid of the police simply because it is a law enforcement agency. Whether the criminal is a republican or a so-called "loyalist" is neither here nor there; they equally loathe and hate the law enforcement body, which is the RUC.
My second point is that an additional community, the Mafia, is emerging. We have been told on good authority—it has not been rejected or denied—that

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three-quarters of the city of Belfast, the capital of Northern Ireland, is now controlled by the Mafia. It perhaps hates the RUC and any police force even more vehemently than either of the two paramilitary organisations.
Viscount Cranborne: I support this amendment. Before I come to its substance, when the Minister replies, I wonder whether he could address himself to the recommendation—once again I am beginning to sound like a cracked record—contained in the report of the Select Committee on Delegated Powers and Deregulation on Clause 52. The committee recommends at paragraph 8 that these matters are of such political importance as to require the endorsement of Parliament by application of the affirmative procedure.
The noble and learned Lord knows that both during my time as Leader of your Lordships' House before the last election, and I believe since that time, both Government Front Benches in your Lordships' House—
Lord Falconer of Thoroton: Amendments will be moved later which will give effect to that.
Viscount Cranborne: In that case I am extremely grateful and I can spare the Committee yet another boring disquisition on the subject. I shall proceed to the subject of this amendment and look forward very much to what the noble and learned Lord has to say in due course.
It has been said by other noble Lords that one has to emphasise how important emblems are in human affairs. After all, man is not an entirely rational beast, to put it mildly, except perhaps the noble Lord, Lord Desai, who I believe is entirely rational. The rest of us do not enjoy the noble Lord's rather unique attributes. We mind very much about emblems. I notice that when a nation throws off the colonial yoke, one of the first things it does is to invent a new flag. That is a matter of enormous moment to that nation as it is to institutions acquiring their own emblems: not only a flag, but badges and all the other paraphernalia of nationhood.
There is good reason for that. In that symbolism is embodied—or we hope will be embodied—all that we wish for our country and all that we believe that it should stand for. In the flag and the emblems there is contained the shorthand of why we want our country to flourish. It seems to me that that should be as true of the United Kingdom as it is of India, South Africa or France. I sometimes wonder whether nowadays we have reached a condition in which all of us are browbeaten into being ashamed of being British when we have perhaps rather more to be proud of in our history and traditions than most other countries. The Committee may consider that a chauvinistic view, but it is one that I hold.
So long as the Province of Northern Ireland is part of the United Kingdom it seems to me to be entirely right that the institutions of Northern Ireland should
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reflect that fact. We should not be ashamed of that, particularly when we are talking about the emblems of the RUC, or of the police force that may or may not succeed it. The emblems that have been so important to the RUC as it has nobly discharged its duties, particularly over the past 30 years, encapsulate not just the symbols of what has come to be thought of as the dominating tribe in the Province but also, as my noble friend Lord Glentoran has said, symbols of Irishness itself. Surely it is sensible for us to think carefully before throwing away our history.
It is interesting to note that since 1997 it has been clearly implied, particularly by certain Members of this Government—although, I am sure, not by the noble and learned Lord—that history began in May 1997 and that we should begin to be ashamed of, and forget, what happened before that. I believe that one of the more recent Members of this Chamber chaired a commission which rather clearly implied that, although he was careful to deny it under questioning. It is interesting to note that while this process has been going on, the public's interest in history seems rather paradoxically to have increased. People are perhaps beginning to understand that history and our past are at least as important as anything else to our understanding of the present and future. There again it seems to me that there is an additional reason for our being careful before we idly throw away emblems which encapsulate a great deal of which we should be proud and which make an enormous difference to our perception of ourselves, our esteem of ourselves and the polity in which we live.
That is perhaps rather a blindingly obvious analysis, but there is another point which I believe makes it particularly important in the Province. I was never a soldier but I am perhaps one of the few people of mine and a younger generation who has been shot at and bombed. I have noticed that that rather unpleasant experience tends to concentrate the mind and to produce rather different assumptions among those who experience such dreadful events than among those who merely watch them at the movies. I notice that for soldiers, or people who are in the front line even if they are not soldiers but who are effectively policing a difficult situation, emblems and the traditions of the forces in which they serve become increasingly important. In my limited experience of such things—many Members of this Chamber have far greater experience than I of this kind of thing—it seems that these matters loom large in maintaining the esprit de corps, the traditions and the good behaviour of the bodies concerned, whether it be a regiment, a band of guerrillas or a police force.
Therefore, it seems to me that we may be asking rather more than the Government perhaps think if we remove the emblem of the RUC and expect the new police force to start afresh with traditions which emphatically will be very much the same as those which are embodied in the cap badge and the aspirations of those who wear it at the moment. I hope, therefore, that for those reasons the Government will think carefully before refusing to accept my noble friend's amendment, or at least a version of it.

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I also hope that they will take into consideration one further point of which my noble friend, with his great experience of the Province, quite rightly made great play in his remarks. We are aware how delicate the peace process is and how delicately poised it is at the moment. I sense among the majority side in the Province at the moment a growing feeling that the Government perhaps do not realise to what extent they will depend on their good will if we are to pursue this process to its conclusion. One of the things the Government could certainly do to show that they at least hold the Protestant/Unionist tradition—indeed, as we know, there are many Catholic Unionists in the Province, although that is something many of us are prone to forget—on a par with the nationalist tradition is to look sympathetically at my noble friend's amendment. I suspect that that would make more difference than perhaps the noble and learned Lord might think to the prospects of Mr David Trimble this coming Saturday.
4.45 p.m.
Baroness Blood: I make two points in support of the amendment of the noble Lord, Lord Glentoran. First, as he rightly said, the emblem reflects the community and the make-up of Northern Ireland. If someone had been asked to design it, they could not have done it better. It would be a serious matter to have a change of name and to throw out the emblem too. We are throwing out our past. We cannot have a future if we do not remember our past. We should not live in the past, but we must remember it.
Secondly, I agreed with what the noble Lord, Lord Glentoran, and the noble Viscount, Lord Cranborne, said, in that the Patten report has certainly concentrated the minds of people in Northern Ireland. I have lived in Northern Ireland all my life, but until recently I could not have said what the cap badge of the RUC consisted of. Now everyone is looking at it. When I saw the uniform as a child I knew that a policeman was coming, end of story. I did not look at his badge or even his name.
On Monday we discussed whether it was a matter of the Protestant community or the Catholic community accepting a change. Here we have a badge that adequately reflects both communities. What are we going to do? Are we going to tell a group of people to create a new badge? Who will be involved in that? Are we going to wrangle over what the badge will consist of and get no further? We have to take decisions. One of the decisions that I hope the Minister will consider in the light of the amendment of the noble Lord, Lord Glentoran, is not to change the symbols because, apart from the fact that they are held dearly, we have to retain something; we cannot throw out everything.
Lord Dubs: I think that the noble Baroness, for whose views I normally have enormous respect, conceded the point by saying that until recently no one had noticed the detailed design of the badge. I was thinking the same thing as the debate progressed. During two and a half years I frequently met RUC
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officers in uniform, but I never noticed the badge until the Patten report was published and the badge became part of the political debate.
In one sense this debate is a repeat of Monday's debate on the name except that on this occasion the Secretary of State has reserved for himself the ability to make a decision on this issue at a later date. That seems a sensible way forward. It gives the Secretary of State more time to discuss and to consult before arriving at a decision. I hope therefore that the noble Lord will not press his amendment, but will withdraw it and enable the Bill, and therefore the Secretary of State, to consider these issues more carefully.
In previous debates on this issue, I have referred to the fact that when I was a Minister with responsibility for Northern Ireland I had meetings with RUC officers at various police stations in Northern Ireland. The object of those meetings was to discuss the Patten report. I am bound to say that although RUC officers were not happy with the suggestions in regard to the name and badge, they said that if those changes, and the others in the Patten report, achieved the aim of getting more Catholics into the police and giving the police the support of nationalist politicians, they would, reluctantly, go along with the changes. I believe that that view reflects common sense and logic.
Lord Laird: Can the noble Lord say what would happen if we make those changes but do not achieve those targets?
Lord Dubs: The objective of the Patten report and of the Government's Bill is to achieve just that. Sometimes matters in Northern Ireland do not work out as quickly and logically as one would wish. But I believe that this is the right way forward. The Patten report came from the Good Friday agreement. It is right that the Government should proceed with legislation to give effect to the Patten report in the hope of gaining the support of both communities. It is very difficult: if the Government move further in one direction, they are opposed from the other side.
Lord Laird: I am grateful to the noble Lord for again giving way, but will he answer the question? What happens if we make these changes but do not achieve the targets about gaining support in full measure from the Catholic Church, the SDLP, Sinn Fein and everyone else?
Lord Dubs: Given that resistance to some measures of the Bill come from the Catholic Church and the SDLP, I am not so näive to say that overnight that resistance will disappear. If the Government proceed with the Bill and send a signal to the people of Northern Ireland that there is to be a new beginning in terms of some of the Patten recommendations for policing in Northern Ireland, retaining—not disbanding—the police, I believe that increased support for the police from the nationalist population will be forthcoming. I believe that and I am hopeful that that will be the case.

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I refer briefly to a point the noble Lord, Lord Laird, made earlier. I understand the difficulties that David Trimble is in. I understand that the Ulster Unionist Council is meeting on Saturday and there may well be problems for his freedom of action as regards his membership of the executive. I hope that that will not be the case, but it may be. Nevertheless, I believe that the Bill in a sense does not weaken David Trimble's position on the matter under discussion. It gives the Secretary of State the opportunity to make the decision at a later date, having consulted further. For that reason, and for the others, I hope that the noble Lord will not proceed with his amendment.
Baroness Park of Monmouth: I am amazed to find that we are still discussing this issue given the recommendations of the deregulation committee. I always greatly respect the noble Lord, Lord Dubs. However, in this case I think that his advice would send a distinct and terrible message to everyone concerned. No one has disputed that the present emblem embraces all traditions and must be pretty inoffensive since, first, the noble Baroness, Lady Blood—I greatly respect her for what she said—said that people do not notice it. Secondly, Catholics have not been prevented entering the RUC because of the emblem but because to do so has been dangerous and they would be killed if they tried. Those are the reasons; we keep trying to ignore them.
Since the nationalists are so very attached to the Belfast agreement, perhaps I may remind noble Lords that it states:
"All participants acknowledge the sensitivity of the use of symbols and emblems for public purposes, and the need in particular in creating the new institutions to ensure that such symbols and emblems are used in a manner which promotes mutual respect rather than division".
I find it difficult to understand how the present emblem does anything but promote mutual respect. It covers every aspect of the Irish tradition. To throw it away is a negative act. It is not an issue which can simply be put off, to be thought about later. Shall we consult the Tate Modern or "Cool Britannia"? Who will think of a better symbol than already exists?
I strongly urge that we do not withdraw the amendment. I strongly support it.
Viscount Brookeborough: I support the amendment and agree with those noble Lords who have said that it is all encompassing. The emblem contains the harp and the shamrock, both of which were around a long time before the IRA. Long before English people went there, the shamrock was growing for thousands of years in the boggy ground. It is a very appropriate emblem.
While someone may say that he knows the mind of the Secretary of State on whether he will change the
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emblem, Secretaries of State change and there are rumours that, come an election, this Secretary of State will change. Who will we have next? Will he wish to change the emblem? I believe that it should not be left to the Secretary of State at present. Although the position may be different in the future should the IRA cease all criminal activities and so on, I should still be reluctant to see the issue left to the Secretary of State.
We hear that RUC officers are reluctant but they might accept the change. The problem is that everything is discussed piecemeal. They are reluctant to see their uniform changed; they are reluctant to see the name changed; they are reluctant to see the emblem changed. As a whole, they are against all these changes together which fundamentally change the force. Therefore, I believe that at present it is a serious mistake to leave the matter to the Secretary of State. People should have the assurance that not everything is up for change now or later. If changes are to be made, let us get them over and done with—it is to be hoped not to the name or the badge—but do not let us have the matter dribbling on for years with one knock after another. I am much against that. I am sure that anyone who works in business or is a part of any group of people, social or otherwise, does not want to continue for ever to have changes.
Lord Fitt: I intervene with the intention of giving further employment to some of the cartoonists in the nationalist newspapers in Northern Ireland which I saw today. No doubt what I say here today will lead to further cartoons.
I listened with great attention to the noble Baroness, Lady Blood. She reflects my every sentiment at present in relation to the RUC and the badge.
The noble Lord, Lord Molyneaux, and I are two of the oldest politicians in this Chamber who have had an interest in Northern Ireland for many years. On reading the Marshalled List today I see dotted throughout the words "flag" and "emblem". That brings back vivid recollections. In 1953 I sat in the distinguished Strangers' Gallery in Stormont when the Unionist government, as they then were, pushed through a flags and emblems measure which subsequently became an Act. While listening to the debate, I seethed with anger. The legislation was entirely directed at the Catholic minority community in Northern Ireland.
A few years later I began to fight elections. I had the honour to represent a small dock constituency for many years. I had to take a circuitous route because there were four Protestant houses at the top of Annadale Street. Those people did not like the flag I carried on my election platform. It was not the tricolour but the starry plough—the flag of the Irish workers which had been designed by James Connolly,

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the great Irish Labour leader. The four people living at the top of Annadale Street objected to that flag and I had to take it down as I passed those four houses. I was restricted from going where anyone objected to the flag. That flag and emblems measure created immense bitterness throughout the years I was in politics until it was taken out of the legislation by the Labour government under Harold Wilson.
I realise how one's blood can be affected by the emblems in Northern Ireland. The harp and crown is of such significance to the unionist community in Northern Ireland that if it is taken away it will be like taking away one of their limbs. If it is not taken away, the republican community—I would not say the nationalist community—will also feel that it has suffered. Again, in Northern Ireland there is no compromise; there are victories and defeats. If the badge is kept, the republicans will see it as a victory for unionism or Protestantism, or whatever other term is used. If it is not taken away, the unionists will be able to claim some sort of victory. I believe that they are entitled to that victory—here go the cartoonists—and to retain the cap badge, because it represents both communities in Northern Ireland. It represents the unionist community, which is currently the majority and it represents the Irish community with the shamrock and the harp.
No one could have designed an emblem that was more helpful in bringing together communities in Northern Ireland. The noble Baroness, Lady Blood, may be interested to know that only in the past two or three years have I looked at the RUC badge. I had never seen it as divisive, but it looms large in the politics of Northern Ireland now.
The First Minister, David Trimble, has a difficult meeting to get through. On the badge and the name, the question is whether we want the peace process brought to an end. I am not threatening that the peace process will be brought to an end if the Government do not agree with me or with David Trimble. Some people would quite like that, but I am not one of them. I hope that David Trimble will remain in place after the meeting on Saturday.
The Government can help the peace process in Northern Ireland by recognising what I have recognised since my earliest days in politics: there are two communities in Northern Ireland and one of them must not be allowed to triumph over the other. There is a wave of republicanism overtaking every aspect of life in Northern Ireland. As I said on Monday, the unionist majority population now feels as I felt until 1968 when the civil rights movement began in Northern Ireland. Many concessions have been made to terrorists on both sides, but in this case I am referring to republican terrorists. The ordinary poor Protestant worker sees his whole culture being taken away from him. Part of that culture is the badge of the police force that he believes has protected him over 30 years of violence. It would be helpful if the Government took into consideration the tremendous impact on community relations in Northern Ireland of allowing the badge to remain.
5 p.m.
Lord Hylton: I have deep respect for the strength of conviction with which many of your Lordships have spoken on Amendment No. 199, but I regret that I do not feel able to support it. It is too prescriptive and would go too far, upsetting the balance of the Bill. I follow the noble Lord, Lord Dubs, who pointed out that Clause 52 as drafted is permissive and does not oblige the Secretary of State to do anything.
In a deeply divided society, as we all know Northern Ireland to be, the symbols of state should he as neutral and impartial as possible. I shall give one or two examples of how that has worked out in the recent past. The letterheads of government departments in Northern Ireland are in plain print, with no symbols representing any particular traditions. The oath or affirmation that a constable has to take on entering the police service has been redrafted and redesigned to tie in with upholding the law, respect for human rights, and so on. The same has been done with the oath or declaration expected of Queen's Counsel when they enter their new, grander status. We should follow such precedents.
Lord Biffen: I have heard a great deal of the debate on the Bill, but I have had the proper diffidence of an Englishman in not wishing to make too assertive a comment. The debate echoes the constant desire for constitutional and social fine-tuning to bring about a more settled future for the Province.
It seems to me that, far from bringing about a greater settlement, new recognitions and new loyalty, the current proposals on the emblems will bring about uncertainty and resentment. The Committee would be wise to accept Amendment No. 199.
Lord Mayhew of Twysden: As a member of the committee that has been referred to, I am grateful to the Government that they will at least provide for the affirmative resolution procedure. It is outside the jurisdiction of the committee to go much further than that. The issue is of such political and social importance that it is unwise to leave it at large for the Minister or Secretary of State to deal with in regulations at some future stage, if so minded, because the necessary order will be dealt with relatively briefly at a late stage in the proceedings of the House.
I take the point made by the noble Lord, Lord Dubs, that the clause is permissive and not obligatory. However, it is a time bomb. I reinforce what my noble friend Lord Cranborne said. As the debate has shown, immense importance is attached to the emblem, primarily by those who bear it, those who have borne it and those who are related to those who have borne it, but also more widely than that.
The noble Lord, Lord Dubs, picked up on the comment of the noble Baroness, Lady Blood, that many people had not noticed the badge. It is one thing not to notice something while it is there; it is very different when the proposal is to take it away.
When that proposal comes under consideration, one asks what the reasons are for taking away the symbol which so faithfully and felicitously represents the

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totality of the responsibilities of that police force. Surely it is entirely right, sensible and non-partisan that any police service should have on its badge a representation of the source from which the authority which it exercises flows. It is a matter of law that that source, in Northern Ireland, is the Crown.
Surely it is sensible that the badge should represent the place in which it exercises that authority. What could be more appropriate than the harp and the shamrock for the reasons mentioned already by the noble Viscount, Lord Brookebrough? It is that, which embraces so aptly all the principal factors which are germane to the jurisdiction of the police service in Northern Ireland—I use a neutral expression—which is to be taken away. People will ask themselves why that is to be taken away. I am afraid that many people will say that it is because the nationalist community, at whose behest the Government would be doing that, cannot tolerate a symbol which is so all-embracing. They cannot tolerate something which is a symbol of unity. That is extremely harmful and damaging.
I do not know whether or not my noble friend will seek to divide the Committee. But the opportunity of this debate has been extremely welcome because I am certain that it will, at the very least, serve to inform the Secretary of State of the strength of feeling on this and the reasons for that. I wonder how one could possibly fail to put enormous weight on the words of the noble Lord, Lord Fitt, with whom, I am proud to say I share in, I think it is, the Irish News today, the cartoon to which he referred. It was particularly accurate in this respect: that he comes out of it much better looking than I do.
Lord Falconer of Thoroton: The noble Baroness, Lady Park of Monmouth, asked why we are debating this in the light of the deregulation committee's report. In a sense that focuses on the nature of the provision which is a process provision. As I indicated to the noble Viscount, Lord Cranborne, we accept the recommendations of the committee and later this afternoon, we shall bring forward an amendment which will mean that any regulations produced under this provision must be dealt with by affirmative order so there will be a debate in both Houses of Parliament on any regulations brought before them by the Secretary of State in relation to emblems.
We recognise the significance and sensitivity of the emblems and have sought to deal with this in a way that recognises the significance of the current emblems for one side of the community but which recognises also, as Patten did, that there are those who do not identify with them. We believe that the best way forward is the way which the Government have proposed; namely, to allow the Secretary of State to regulate the flags and emblems after consulting the various parties, including the new police board, which will be representative of both the wider community and political opinion. There would be real advantage in obtaining the views of the board on that sensitive matter.
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The amendment proposed by the noble Lord, Lord Glentoran, would prejudice the conclusions of the board. It would be much better to proceed by way of consensus, if that were possible. In another place, the Government said, when debating this very amendment, that this amendment makes an assumption about the emblem that should be used by the new police service. Although the Government are not unsympathetic to the view that the new emblem of the police service may not necessarily be free of association with both traditions, and have said so, the proposal restricts the movement of the Secretary of State who wants to consult the board. This provision merely lays out a process which is a sensible process. Therefore, I respectfully ask the noble Lord not to move his amendment.
5.15 p.m.
The Deputy Chairman of Committees (Lord Strabolgi): I remind the Committee that the amendment before the Committee is Amendment No. 198A, which has not yet been decided.
Lord Glentoran: Before the Minister sits down, I wish to respond in relation to my Amendment No. 199. I thank all Members of the Committee who have taken part in the debate, which has been extremely demonstrative. The noble and learned Lord may not think that it has been useful, but it has been demonstrative.
The point has been made clearly that the hat badge and the emblem are now political subjects. It is the objective of Patten and, I think, the rest of us to set up an apolitical police force and an apolitical board. Therefore, in my view, it must be wrong that this major political problem should be one of the first matters with which the new board must deal.
The Minister says that the Government want more time to negotiate, discuss and consult. I tell the Government that they have until Report stage when we shall return to this matter. At that time, this decision and several others must be taken by the Government. Those decisions must be taken sooner or later. It is for the betterment of Northern Ireland, democracy and the future police force that those decisions are taken as soon as possible. Ideally, I should like to see them taken now. However, this afternoon, I notify the Government that we shall return to this in an equally strong, or stronger, manner on Report. Therefore, I shall not press my amendment.
Lord Falconer of Thoroton: I ask the Committee to agree to Amendment No. 198A.
On Question, amendment agreed to.
[Amendment No. 199 not moved.]
Clause 52, as amended, agreed to.
Clause 53 agreed to.
Clause 54 [Co-operation with Garda Siochana]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 200:
Page 28, line 8, leave out after ("shall") to ("co-operation") in line 10 and insert ("promote, wherever practicable,").
The noble Lord said: This is a small matter. It is not nearly as emotional or important as the matters discussed in the previous debate.
Clause 54 provides for co-operation between the RUC and the Garda Siochana. Clearly, we are all in favour of that, the more the better. However, it seemed to us that the way in which it is expressed may even limit the co-operation because the Bill provides that the board and the Chief Constable,
"shall implement any arrangements made … between the Government of the United Kingdom and the Government of Ireland",
dealing with co-operation on police matters.
We suggest that there should be a duty on the board and the Chief Constable to promote co-operation "wherever practicable". Of course, that means co-operation resulting from agreement between the two governments; but it means a lot more than that.
It means also co-operation between the two forces themselves and, indeed, at the lower levels between the individual units of the various forces. It was my experience, when I had responsibility for security in Northern Ireland, that the co-operation seemed to be better the lower down the scale you went. The station sergeants in police stations either side of the border were much more likely to telephone each other than were the people in the headquarters of the two police forces or—even less likely—the two governments. We had discussions about co-operation and we constantly tried to achieve more co-operation out of the government of the Republic at that point. I am talking about 10 years ago. The work was extremely sticky and difficult, whereas co-operation between the sergeants on day-to-day matters was, as far as I could detect, fairly good. I do not suggest that today co-operation at the top level is not equally good; certainly, it is now much better than at the time of which I speak. We believe that such co-operation should take place extremely widely.
Chapter 18 of the report of the Patten commission deals with co-operation and makes several sensible recommendations about how it can be improved, for example that there should be more joint planning, joint exercises and that kind of thing, protocols between the two police forces and agreements between the two governments. We seek to widen the clause so that the board and the Chief Constable are under an obligation to promote, wherever practicable, co-operation on policing matters between the RUC and the Garda Siochana. I beg to move.
Lord Molyneaux of Killead: The Patten report advocated increased co-operation. Co-operation has existed for some time. One of my friends who is a Garda officer said:
"and we could do better if the politicians kept out of our way".
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I have omitted an expletive. It is important to build on good relations. As the noble Lord, Lord Cope of Berkeley, said, relations have always been extremely good at inspector level. As my noble friend Lord Laird said earlier, there is an understanding between us on the modernisation and re-equipping of the Garda. The flourishing economy of the Republic of Ireland is very reassuring. We may have difficulty persuading Her Majesty's Treasury to meet some of the costs of the necessary upgrading of the Garda. But I am confident that the Irish Government will be convinced of the necessity to upgrade the Garda and, at the same time, reduce political interference in line with the observation of my favourite Garda officer. There will be an imperative if effective co-operation is the result. Co-operation would be damaged if there was any evidence of infringement of the operational independence of the Chief Constable of the RUC by any source whatever.
In a sense the clause, which the noble Lord quoted, smacks of political interference. The provision opens the way to unnecessary political interference. What else is one to make of the third line of Clause 54 which speaks of "co-operation on policing matters"? That is a definite invasion of the territory of the two Chief Constables, North and South. It is their job to organise and implement co-operation on policing matters; it is nothing to do with politicians, great or small. As to those aspects of the clause, the board and the Chief Constable are entitled to firm reassurance.
Viscount Brookeborough: I support the amendment, in that by inserting "promote, wherever practicable" it puts the objective in writing. Although certain arrangements are written down and dealt with officially they do not have much effect on the ground. From my service experience, the only arrangement that worked on the ground was almost secretive. When we or the Garda crossed the border in effect it had to be covered up, because if it had gone high enough up the ladder it would have created a diplomatic incident. I give two examples. At least 10 years ago in Fermanagh, unbeknown to us, there was a bomb on our side of the border near Rosslea. Luckily, the Garda found the command wire and followed it across the border until it reached the bomb. Obviously, that was a great benefit to us because we were not very close to it. The IRA did not take on the Garda, so it was a good way to find out where it was. Nothing was done about it. That happened on the ground and it was discussed between the police forces at local level.
Rather late one evening we defused a bomb in Belleek but could not be extracted by helicopter. ATO and his protection could not be moved. I was or the ground and conditions were extremely wet. Because of local chat between the two forces we were able to cross the border and enter the village of Belleek. The present arrangements are ridiculous; they should be pushed much further by government and the police forces so that those operations can take place without everybody being up in arms about encroaching across the border. I am all in favour of anything that

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persuades people to make greater efforts to ignore tiny infringements in order to end cross-border terrorism in particular.
Viscount Cranborne: I am very confused by the existence of Clause 54 at all. At one level it could be read as anticipating that the two Governments might make arrangements to be imposed on the police force in Northern Ireland against the stated will of the board and the Chief Constable. I cannot conceive that any government should do that, particularly one that, from my reading of the Bill, appear to want to consult as widely as possible before bringing into operation any new arrangements. However, I sometimes wonder whether the Government will go their own sweet way whatever the results of the consultation. Perhaps that is what lies behind the clause.
I hope that the noble and learned Lord will provide me with a further explanation of this provision. I am entirely ignorant of the day-to-day circumstances, apart from once having had a modest interest in this matter as a junior Minister in the Ministry of Defence concerned with military rather than police matters. It is curious that we need the clause at all. It may be sensible for such matters to be taken out of legislative provision and for consultation on both sides of the border to continue on an operational level so that the objectives of the noble Viscount can be achieved in that way, rather than to take a sledgehammer to crack a nut and include a clause which creates more suspicions than it dispels.
Baroness Park of Monmouth: I, too, strongly support the amendment because of my considerable concern about this matter. The Belfast agreement, very properly, speaks of co-operation and discussion, but this clause refers to,
"an agreement"—
not just any agreement—
"between the Government of the United Kingdom and the Government of Ireland".
That suggests either that there may already be an agreement or that there could be a series of formal agreements which would then have to be implemented. Frankly, if the object is to depoliticise the RUC this is not the right way to go about it.
The Irish Government have always had their own political agenda. At the moment that agenda points to pleasing Sinn Fein/IRA as far as they possibly, and decently, can. In the past they have discussed with Sinn Fein troop levels in Northern Ireland and a number of other issues which are the business of a sovereign country. I am deeply disturbed that we are about to enshrine in legislation the right of the Irish Government to impose any kind of decision or view on the RUC in what is part of the United Kingdom. I do not think that it has yet been made clear enough exactly what will be the powers.
Furthermore, as I have said, I am concerned about the fact that, in the past, the Dublin government have been only too ready to advance their own point of
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view—to say the least—in negotiating with the IRA, thus landing us with consequences which we could not resist.
5.30 p.m.
Lord Dubs: Before the noble Baroness sits down, perhaps I may ask her a question. Does she agree that the Dublin government have held meetings with practically all the political parties in Belfast, including that headed by Mr David Trimble? To suggest that the Irish Government have an agenda simply to support terrorists in Northern Ireland is not a fair statement of their position.
Baroness Park of Monmouth: Not for a moment do I suggest that the Irish Government support terrorism. However, I am saying that, no matter how much consultation has taken place, they have, on a reasonably large number of occasions, negotiated and talked to the IRA in Dublin—on our behalf, I hasten to add. Necessarily, however, their interests and ours will at some point diverge. Very frequently, their future interests—with Sinn Fein likely to enter the Dail and to become a political partner—will affect their point of view. I believe that it would be dangerous for that point of view in any way to impinge on the operational activity of the RUC.
I accept utterly that splendid co-operation exists between the RUC and the Garda. It seems to me that that is enough and that there should be no more.
Baroness Farrington of Ribbleton: As the noble Lord, Lord Cope, outlined, this amendment would remove the board's and the Chief Constable's obligation to implement arrangements arising from an agreement between the UK and the Irish Government on police co-operation and would substitute a requirement to promote co-operation where practicable.
Perhaps I may begin by making it absolutely explicit that the purpose of this clause is designed to meet the recommendations in chapter 18 of the Patten report. The only way in which that can be done is through this clause. It has absolutely nothing to do with interfering with the operational independence of the RUC and the Chief Constable. The agreement between the UK and the Republic will not direct the Chief Constable in any way.
The matters in the agreement will cover the areas outlined in the Patten report; namely, annual conferences, written protocols, personnel exchanges, secondments, liaisons and joint training. It does not cover the kind of issues mentioned by noble Lords, whose worries I hope to be able to assuage.
Patten made it perfectly clear that there should be written protocols on co-operation between the two police services, building on the good relationships. I am sure that the noble Viscount, Lord Brookeborough, when speaking of his experience, would agree that it is preferable to establish a formal framework in which the kind of activities he described as taking place in a faintly clandestine way—I do not

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intend that to be a derogatory reference—could be better achieved by other means. Patten recommended strengthening co-operation between the police on both sides of the border. That is exactly what this clause provides for.
I can reassure the noble Viscount, Lord Cranborne, and the noble Baroness, Lady Park of Monmouth, that the Government would not reach an agreement without the Chief Constable being fully involved in the process. Furthermore, it is worth mentioning that the areas likely to be covered by such an agreement are those set out by Patten. Perhaps I may refer to them in a moment.
I am a little confused by the concerns expressed by several noble Lords as regards any framework that would increase co-operation to cover areas such as tackling the dreadful problem of paedophile rings, in particular on how they operate cross-border. That is the kind of area that we envisage being addressed here, along with financial crime and co-operation on drugs issues. None of these areas is in any way a party political matter. Furthermore, such areas, which would inevitably benefit from co-operation, are not in any way areas where the integrity and responsibility of the Chief Constable and the RUC would be impugned by greater co-operation being achieved. I assure the noble Viscount, Lord Brookeborough, that this would be done through the protocol which sets out and establishes the framework under which such co-operation could take place.
We believe that this will be in the interests both of the police services and of good policing. I know from his contribution that the noble Lord, Lord Molyneaux, recognises that an enormous amount of good practice is already in place. Perhaps I may reassure noble Lords that this does not in any way concern political interference. It concerns the establishment of a framework to build on the good practice and exceptionally hard work that has already taken place—without the benefit of the backing of the protocol.
Viscount Cranborne: Before the noble Baroness sits down, can she confirm that, in order to encourage such desirable co-operation—an aim shared by every Member of the Committee—it is clear that legislation is needed?
Baroness Farrington of Ribbleton: This is being done in order to implement Patten and to establish clearly—beyond peradventure and beyond doubt—a framework in which co-operation can take place. I assure the noble Viscount that those are the principal objectives. Given that, this clause is not only necessary; it is also extremely desirable.
Lord Cope of Berkeley: I am astonished at the response of the noble Baroness. Clearly there has been a failure of understanding here. We are all in favour of the kind of co-operation she has outlined. Indeed, I and several other noble Lords have mentioned similar
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areas of policing where co-operation should take place. However, a clause of this character is not in any way recommended in the Patten report.
The Patten report does recommend that the two police services should have written protocols, but that does not mean that the governments should negotiate what is to be done. The report draws on the model of the Kent police. In paragraph 18.6, it states:
"Kent police have signed several protocols with police services across the Channel".
Paragraph 18.7 goes on to say,
"We recommend that the two police services"—
the RUC and the Garda—should sign protocols between themselves. However, the clause does not acknowledge that. It concerns an agreement that is to be reached between the Government of the United Kingdom and the Government of Ireland rather than the police services.
Nothing is required in the Bill to permit the police services to make agreements; there are already quite a number of them. Furthermore, nothing is required from the Bill to permit co-operation on paedophiles or any of the other matters that we have discussed.
Baroness Farrington of Ribbleton: Perhaps I may reassure the noble Lord, Lord Cope, that the provisions under which the Kent police service operates are enshrined in law. Perhaps I may also reassure the noble Lord that, although the agreement sets out the scope, it most certainly does not instruct or empower anyone to interfere with the operational independence of the Chief Constable and the RUC. I believe that we are at cross purposes here. If it would be helpful to discuss this matter in more detail before Report, we would be only too happy so to do.
Viscount Brookeborough: Before the noble Baroness sits down, can she tell us if the Irish Government have stated that they felt that they must legislate in exactly this way in order to keep their side of any bargain that may be in the offing?
Baroness Farrington of Ribbleton: I am afraid that I am unable to do that—just as I am unable to say whether the French had to change their legislation to enable the Kent police to co-operate with them. I cannot answer for the legislative procedure needed to operate such an agreement.
The agreement is the framework to allow and legitimise areas of co-operation—nothing more. Noble Lords' fears are unfounded.
Lord Hylton: Before the noble Lord, Lord Cope, replies, my understanding is that "arrangements" in Clause 54 means "protocols". If a protocol is agreed, surely the governments responsible for those making the protocols must also be engaged.
Lord Cope of Berkeley: We are at cross purposes. Part of my doubt, which the noble Baroness has not resolved, is that we are frequently told by lawyers in the course of debating Bills that giving legal authority

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to one specific matter implies that there is not legal authority for matters which are adjacent to it but for which authority is not given. That worries me.
So far as concerns the Kent police, I am aware that there are various agreements—I was involved in them during another stage of my career—in regard to the Channel Tunnel and the operations of the two police forces in a foreign jurisdiction. Under agreements, there are small areas of Kent and small areas of the Pas-de-Calais which are regarded as the territory of the other country. Obviously, such agreements have to be negotiated between governments.
However, we are not discussing that here. We are discussing the kind of thing that Patten discussed—that is, an annual conference between the two police forces, liaison officers, co-operation in training and so on. These do not require a government agreement; they require an agreement between the two police forces primarily. That is the level at which it should be done.
I am, of course, aware that policing in the Republic of Ireland is subject to much closer day-by-day political control—down to quite a low level in the police force—than would be acceptable in our tradition. Both jurisdictions and both police forces will have to take that into account in dealing with one another.
The amendment seeks to widen the responsibility of the Chief Constable and the board in order to improve co-operation in regard to the matters discussed. As the noble Baroness said, there seems to be a disagreement about the purpose of this and the extent to which it is made necessary by Patten, which I think it is not. In the circumstances we shall gladly take up her offer to discuss the issue further between now and Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 54 agreed to.
Clause 55 [Annual and other reports by Board to the Secretary of State]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 201 and 202:
Page 28, line 38, at end insert—
("( ) the level of public satisfaction with the performance of district policing partnerships;").
Page 28, line 39, after ("effectiveness") insert ("of district policing partnerships in performing their functions and, in particular,").
On Question, amendments agreed to.
[Amendments Nos. 203 and 204 not moved.]
Clause 55, as amended, agreed to.
Clause 56 agreed to.
Clause 57 [General duty of Chief Constable to report to Board]:
5.45 p.m.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 205:
Page 29, line 40, leave out from ("it") to end of line 41 and insert ("concerns sensitive personal matters").
The noble and learned Lord said: To his great regret, my noble friend Lord Desai has been suddenly and unavoidably called away. He asked me to do two things: first, to apologise to the Committee; and, secondly, to move his amendment. It may be convenient to the Committee if, in considering Amendment No. 205, we debate all the amendments down to Amendment No. 218, and then Amendment No. 236.
Before he left, my noble friend Lord Desai spent all of 45 seconds explaining to me the purport of Amendment No. 205. If my exposition appears a little inadequate, I trust that the Committee will find it in its heart to forgive me. As I understand it, he wishes to raise the question of whether the powers of the Chief Constable to decline the board's invitation to submit a report, or to frustrate the board's intention to hold an inquiry, are too wide.
The Patten commission said that he should have power to decline if the information concerned a sensitive "personnel" matter. That appears in the Bill as a sensitive "personal" matter. Whether that is deliberate, I am not sure—no doubt my noble and learned friend will be able to tell us—but I have thought for a long time that there is room for a book on how printers' errors and clerical errors have changed the course of history.
The difficulty is that there are a number of sensitive "personal" matters which may require a report and which may very properly give rise to an inquiry. If, for example, the question arose as to whether someone had a criminal record, that may well be a proper occasion for a report—but it would be of course a "personal" matter. That, as I understand it, is the purport of what my noble friend Lord Desai wished to raise. I am not sure that I can helpfully carry it much further.
However, I can speak to my own amendments, Amendments Nos. 209 and 210. We are considering the powers of the board to establish an inquiry into a matter of concern. It is obviously not intended that an inquiry should be held lightly. The power is activated only when the board is so concerned about the matter in question that it has required a report from the Chief Constable, and that report has persuaded them that it is a grave matter or that the circumstances are exceptional. The Patten commission believed that the freedom of the board to appoint an inquiry was important. That importance was emphasised in paragraph 6.23
The clause then goes into the hypothetical mode. Suppose the Chief Constable does not agree with the board that an inquiry should be held. I assume that that is not a view he would reach lightly. It would be virtually bound to become public that the board wanted an inquiry and the Chief Constable, as it might well be seen, wanted the matter hushed up. The Patten commission said that if there is a difference of opinion between the board and the Chief Constable as to whether an inquiry should be held, the issue should be referred to the Secretary of State. The Bill seeks to give effect to that and so lists the grounds which would

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justify the Chief Constable referring the issue to the Secretary of State. The grounds are carefully defined. We probably all agree that they are indeed grounds which would require careful consideration.
In that situation, the Secretary of State must decide between the board and the Chief Constable. It would not be an enviable position in which he would find himself. Whatever he decides would attract criticism. But we would expect him to make himself familiar with the grounds on which the Chief Constable had reached his decision to oppose the appointment of an inquiry. If the Secretary of State decides that one of the grounds listed in the Bill and specified by the Chief Constable is established, he must weigh the consequences of holding an inquiry against the consequences of not holding it. Up to that point, I have no quarrel with the Bill.
But suppose the Secretary of State is not satisfied that the Chief Constable has made his case; that he is not persuaded that, for the reason advanced by the Chief Constable, the inquiry ought not to be held? I apologise for the double negative; it probably requires a visual aid If he reached that conclusion, one might have thought that that would be the end of the matter. But, no—the Secretary of State may also overrule the board and decide that there should be no inquiry if it,
"would serve no useful purpose".
The board has already decided that the matter is so grave that there should be an inquiry. The Chief Constable has argued why there should not be an inquiry. The Secretary of State has decided that he does not agree with him. After all that, the Secretary of State may still say, "Oh, but I do not think the inquiry would serve a useful purpose". Members of the Committee will remember that if the Chief Constable had not referred the matter to the Secretary of State, he would not have been involved at all. He would have had no opportunity to ask himself whether it would serve a useful purpose. But having decided that the reason why the question was referred to him will not hold water, he can now say, "But having got my hands on the matter I can decide it on a ground which was not previously ventilated".
This situation has arisen because in another place the Secretary of State was persuaded that he had gone too far in imposing limitations on the board and sought to modify his own powers. Members of the Committee will recollect that if the Chief Constable is required by the board to submit a report at the very inception of the process, he may at that stage appeal to the Secretary of state and argue that he should not be called on to submit a report—but only under one of the grounds set out in Clause 57. Even then he is not entitled to submit that it would serve no useful purpose. So why, when the board is so concerned that it proposes to hold an inquiry, is the Secretary of State given power to second guess it, but to do so only if the Chief Constable thinks there is some different object ion to holding an inquiry?
If the Secretary of State ever exercises that power, one might imagine the outcry at the suspicion that something is being hushed up. None of the other
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objections to an inquiry has been argued or, if argued, upheld. But the Secretary of State tells us that it would serve no useful purpose. Later today your Lordships will be debating the Freedom of Information Bill where concern has been expressed that the Government are afraid to let go of nurse's hand and leave behind the culture of secrecy. Is this not a classic example?
I turn to Amendment No. 210. This is a very narrow issue. But in Northern Ireland, it is so often the narrow issues which spark off the controversies. Clause 58 states that the board, having decided to hold an inquiry, may appoint one of the persons listed in subsection (6) to conduct it. If it decides that there is a reason why it should not be conducted by one of those persons but by someone else, it may appoint another person. I understand that in that situation it would be wise to consult the Secretary of State. I have included that provision in Amendment No. 210. The Bill would go further. The Bill would require the approval of the Secretary of State; he can veto the proposal.
We would hope that the board would not take leave of its senses and decide to appoint someone who was wholly inappropriate. Surely those appointed to the board will be sensible and reasonable people who can be relied on not to go mad. If not, the whole scheme of the Bill collapses. Surely they should be permitted a measure of independence. I am bound to say that if, per impossibilia, I were the Secretary of State, I should not wish to be placed in a position where if I decided to overrule the board I would be widely suspected of being afraid of a serious inquiry and wishing to appoint my own nominee; while if I refrained from overruling the board and anything went wrong I would share the blame. So one would rather hope that the Secretary of State would not be minded to take advantage of the power. But would it not be wiser to allow the board to let go of nurse's hand and take responsibility for its own decisions? On behalf of my noble friend Lord Desai in relation to Amendment No. 205, I beg to move.
Baroness Harris of Richmond: I rise to support Amendment No. 209 tabled by the noble and learned Lord, Lord Archer of Sandwell, and to which my name among others is added. I shall also speak to Amendments Nos. 211 and 217 which stand in my name and in the name of my noble friend Lord Smith of Clifton.
The noble and learned Lord, Lord Archer, has eloquently expressed our concerns about the provision in Clause 58(5)(b) which would give the Secretary of State a veto over any inquiry called by the board. Clause 58(5)(b) is a catch-all clause, which would effectively allow the Secretary of State to object to an inquiry on any grounds whatever. It is not just belt and braces; it is double belt and braces. Have the Government so little confidence in the board, which the Bill sets up, that they think that the board would establish an inquiry which would serve no useful purpose whatever? How else can one read this provision? What credibility would the police board

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have in the community if it set up an inquiry every five minutes on anything under the sun? I simply cannot believe that would happen.
Lord Falconer of Thoroton: I may be able to shorten the debate. The Government have listened to concerns that the balance may have been too far in the direction of safeguards. They have made a number of changes as a result. In relation to Amendment No. 209, which was spoken to by the noble and learned Lord, Lord Archer, we are persuaded to make a further change by accepting his amendment. The Government believe that the balance struck by the Bill once that amendment has been made will be right. It removes paragraph (b) from Clause 58(5).
Baroness Harris of Richmond: I am grateful to the noble and learned Lord for accepting the amendment.
Perhaps I may speak to Amendments Nos. 211 and 217. Clause 58(9) suggests that the Government do not trust the board to appoint a suitably credible and independent figure to conduct an inquiry relating to an issue outside the remit of the ombudsman, the Comptroller and Auditor-General or Her Majesty's Inspectorate. That again is a poor show of confidence in the board.
Board members will need to be ready to compromise and achieve an apolitical approach, a subject about which we have heard a good deal this afternoon. That is what happens in England and Wales where we have both political and non-political members of police authorities. If the board cannot do that, it will achieve nothing.
On Monday we heard a good deal about the Patten report and the Government's keenness to implement the recommendations. A number of times it seemed to me that the Government's version of the Patten report differed from that published. On the point raised by Amendment No. 211, Patten stated that,
"the Board should have the power to request another agency to conduct an inquiry and should have the capacity to do so itself".
The Patten report said nothing about the board having to seek the approval of the Secretary of State on this matter.
I turn to Amendment No. 217. All that I have said before is completely irrelevant if the Board cannot initiate an inquiry because it does not have any money. As we all know, money talks. The financial provisions which we have already discussed mean that the board is wholly dependent for money on the grant made to it by the Secretary of State. The board can howl to the moon, but if it has no money to pay for an inquiry, it simply will not happen. This is really critical. Patten recommended that the board should be able to call for inquiries where appropriate, except where there was an issue of national security, personnel matters or matters which are sub judice. The Bill already excludes such circumstances by virtue of Clause 58(3) and (5). The Government have said that the Bill will implement the Patten report and that the board's functions will be effectively neutered if it cannot call for an inquiry. I ask the Committee to support the amendments.
6 p.m.
Lord Glentoran: Much as I enjoy the straight logic of the arguments of the noble and learned Lord, Lord Archer of Sandwell—I enjoy the way he takes us so clearly through them—and much as I respect the noble Baroness, Lady Harris, for her expertise in this field, I am afraid that my rather cynical and, it may be argued, slightly less logical mind, tainted by years of living in Northern Ireland, understands very well why Amendment No. 209 should not be accepted, why paragraph (b) should remain in subsection (5), and why I should oppose Amendments Nos. 216 and 217.
As I understand the position, subsection (5)(b) was inserted into the Bill to give the Secretary of State the power to stop what might loosely be termed "politically motivated" board members raking over history by demanding inquiries into events such as— dare I say it?—Bloody Sunday and so on. If subsection (5)(b) is removed, there is no mechanism to stop a police board instigating inquiries into events long before its appointment and the setting up of the new police force. To allow that, and not to be in a position to stop it were that necessary, would be wrong.
The provision to which Amendments Nos. 216 and 217 refer is necessary to impose a financial discipline on the board and on the Chief Constable. When they prepare their budget for the year, they should allow a certain amount, which they probably will not get right in the first or second years, for the instigation of these inquiries. That will act as a discipline to stop a police board setting up inquiries into matters that are probably less than vital and necessary for the day-to-day well-being of policing in Northern Ireland. We do not support any of the amendments, including the amendment conceded by the noble and learned Lord the Minister. We shall consider the issues again before Report and will probably come back to both of them.
Lord Hylton: I am grateful to the noble Lord, Lord Desai, to the noble and learned Lord, Lord Archer, and to other noble Lords who have tabled amendments in this group. Before I deal with the amendments, I should just mention that there is a misprint in the Marshalled List concerning Amendment No. 205, which is properly described by page and line but should in fact refer not to Clause 56 but to Clause 57.
Lord Archer of Sandwell: I am grateful to the noble Lord for giving way. It has also just been pointed out to me—I must have an out-of-date copy of the Marshalled List—that there is a misprint in that too. Having elaborated entirely on the difference between "personnel" and "personal", it has appeared in the Marshalled List as "personal".
Lord Hylton: I am obliged to the noble and learned Lord. I was just coming on to the matter of "personnel" and "personal". The point is that "personnel" is what Patten included in his report. He wrote it referring to members of the police service. Therefore, it is a narrower expression than "personal", which could refer to any member of the public. In this

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context, it is desirable to be narrower rather than broader because the scope for inquiries initiated by the board should not be unnecessarily narrow.
Having said that, I congratulate the noble and learned Lord, Lord Archer of Sandwell, on having his Amendment No. 209 accepted by the Government and I should like to support as strongly as I can Amendments Nos. 211, government Amendment No. 213 and Amendments Nos. 216 and 217, which are closely connected with each other. As to the remarks of the noble Lord, Lord Glentoran, I would just comment that precommencement matters are already dealt with in government Amendment No. 214. Before an inquiry can start, it will have to have the approval of a majority of the board. That will eliminate the possibility of frivolous inquiries being initiated.
The noble Lord, Lord Glentoran, referred to financial discipline. I would put it to him that the board as such has a small and limited budget and therefore there will be little room within it for possibly any inquiries—certainly not for inquiries of a long and costly nature. However, such costly inquiries may be necessary and very much in the public interest. Therefore, I hope that there will be no financial provisions which would eliminate and make impossible the holding of inquiries.
Lord Laird: I rise to speak to Amendment No. 207. The amendment is intended to address a flaw in Clause 58. It has been tabled in the interests of maintaining consistency in investigatory powers with respect to time-barring. Although Clause 58(12) prevents inquiries into matters that occurred before the coming into force of "this section", it differs from the rules with regard to the ombudsman under Clause 64.
In the case of the ombudsman, there is a long stop period for which time runs from the point of the alleged conduct which forms the basis of the complaint. That is not the case with regard to Clause 58. In "X" number of years' time the board will be able to demand a report on and an inquiry into conduct that takes place the day after the clause comes into force. The amendment applies only to conduct. Therefore, it would still be possible to conduct inquiries into trends over a long period of time.
All the amendment seeks to do is to harmonise the time-bar rules for inquiries and investigations by the board and by the ombudsman into the conduct of police officers. I hope that the noble and learned Lord the Minister will reflect favourably on the amendment.
Lord Falconer of Thoroton: Perhaps I may deal, first, with the amendments spoken to by the noble and learned Lord, Lord Archer of Sandwell, but which were in fact tabled by the noble Lord, Lord Desai. We proceed on the basis that the noble Lord, Lord Desai, meant that "personnel" should replace "personal". The Patten report said that intrusion into sensitive "personnel" matters should provide grounds for questioning whether a report or inquiry should be held. 'The Bill says "personal" instead of "personnel". It does so simply in order to be consistent with Section 2 of the Data Protection Act 1998 which refers to
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"sensitive personal data". It might be right for sensitive data about an individual to be protected if necessary. In the light of that, I ask the noble and learned Lord, Lord Archer of Sandwell, to withdraw the amendment in the name of the noble Lord, Lord Desai.
Perhaps I may deal with government Amendments Nos. 206, 213, 218 and 236. Amendment No. 206 replaces a reference to "one month" with "30 days" in Clause 57(4), thus ensuring consistency with the reference in Clause 58(4). Amendment No. 236 applies to the Bill general rules governing the calculation of periods of time.
Amendment No. 213 to Clause 58(9) effects a presentational change in respect of the roles of the Secretary of State and the policing board in the appointment of a person other than the Comptroller and Auditor General, the inspector of constabulary or a police ombudsman to conduct an inquiry under the terms of the clause. Under the amendment the Secretary of State would "agree" rather than "approve" an appointment. The change reflects the Government's desire to meet, where possible, concerns about the balance between the Secretary of State and the new policing board.
Government Amendment No. 218 reflects a commitment made in Committee in another place for the ombudsman to receive a copy of an inquiry report from the board. It must be right that the ombudsman should receive such reports as they may be relevant to her work.
Turning to government Amendment No. 214, Clause 58(11) sets out clearly that,
"An inquiry … may not deal with acts or omissions which occurred, or are alleged to have occurred, before the corning into force of this section".
As Patten said, his report was about looking forward.
Recognising, however, that there may be facts that are relevant to a current inquiry, the Government accept that there are grounds for qualifying Clause 58(11) so that the inquirer may consider historical or pre-commencement material if it is necessary for him to do so in the course of an inquiry.
The inquirer would not have the same power as he would for post-commencement material. Were, for example, an inquirer to be given access to previous guidance on the use of plastic baton rounds, he would be able to consider that in an inquiry into the current use of plastic baton rounds. We should expect the inquirer to be provided with such statistical and general information but not necessarily information relating to specific cases.
This meets Patten's general principle that his recommendations are about a new beginning, not,
"a series of judgements about who was culpable for each of the tragedies and mistakes of the past".
As the Government have once again moved to meet concerns about the Bill on this subject, I hope that the noble and learned Lord, Lord Archer of Sandwell, will feel about not to move Amendment No. 215 in the name of the noble Lord, Lord Desai, which addresses the same point.

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Amendment No. 207, spoken to by the noble Lord, Lord Laird, would prevent inquiries into police conduct if that conduct took place more than a certain period before the inquiry was initiated. We believe that there are sufficient safeguards and it would be difficult to prescribe a straightforward period. For example, a matter may not come to light for several years. Remembering, therefore, that the inquiry can only deal with post-commencement matters as its subject, I invite the noble Lord not to move the amendment.
Amendment No. 209, seeks to remove paragraph (b),
"would serve no useful purpose".
I indicated the Government's position in response to a point raised by the noble Lord, Lord Glentoran. We believe that the balance struck by the Bill is now right and I earnestly ask the noble Lord to consider carefully the whole balance of the Bill in relation to inquiries before making a decision about what to do at a later stage.
Amendment No. 210 tabled by the noble and learned Lord, Lord Archer, Amendment No. 211 in the name of the noble Baroness, Lady Harris, and Amendment No. 212 in the name of the noble Lord, Lord Desai, seek to remove the Secretary of State's approval for the appointment of a person to hold an inquiry, other than bodies listed in Clause 58(7); namely, the ombudsman, the inspector of constabulary or the Comptroller and Auditor General.
Amendments Nos. 210 and 212 require consultation with the Secretary of State instead. The board's powers in this area are unique in terms of UK police authorities and it is right that the Secretary of State should be assured of the competence of any person appointed to wield the considerable powers at the inquirer's disposal. I should emphasise that if one of the professional bodies to which I have referred is decided upon, the Secretary of State's approval is not required.
I turn finally to the funding of inquiries. Amendments Nos. 216 tabled by the noble and learned Lord, Lord Archer of Sandwell, and Amendment No. 217 in the name of the noble Baroness, Lady Harris, require the Secretary of State to pay for inquiries instead of the board, which is the present position under the Bill. The Government believe that resources should rest with those using them. The board will be expected to bid for its resources as the Police Authority of Northern Ireland currently does, but the Government cannot be expected to write blank cheques for the board to carry out inquiries. This is not a way to block the board's use of its power—it is government accounting. Naturally, the Government would consider carefully any bids by the board for additional resources but, as I have said, the Government cannot give the board a blank cheque. I invite noble Lords not to move their amendments.
6.15 p.m.
Lord Archer of Sandwell: I am grateful to my noble and learned friend for providing a further listening ear in relation to Amendment No. 209. I seem to be having my teeth drawn, but it is proving a painless extraction.
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Secondly, perhaps I may express gratitude to the noble Baroness, Lady Harris, and the noble Lord, Lord Hylton, for having referred to my Amendment No. 216 and the noble Baroness's Amendment No. 217, which I simply overlooked in opening the debate.
This is not the moment to re-open the issue. I have heard what my noble and learned friend has said. However, he says that government budgeting is not a way of preventing people exercising their powers. I should have thought that that is precisely what it is, and precisely what the intention is. Whether it ought to be in a particular situation is a matter which we may debate on Report.
Finally, as to the amendments standing in the name of my noble friend Lord Desai, I am not sure that my noble and learned friend got the point. It was almost certainly my fault because of the way in which I spoke to them. He does not seem to have noticed that there is a difference between "personnel" and "personal". It is not simply a matter of drafting, as other noble Lords have said. I should have thought that the intention is that the word should be "personnel". However, we shall try again between now and Report. I am in a dilemma in any event because the amendment is not mine but that of my noble friend. In those circumstances, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 206:
Page 30, line 4, leave out ("one month") and insert ("30 days").
On Question, amendment agreed to.
Clause 57, as amended, agreed to.
Clause 58 [Inquiry by Board following report by Chief Constable]:
[Amendments Nos. 207 and 208 not moved.]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 209:
Page 31, line 1, leave out paragraph (b).
On Question, amendment agreed to.
[Amendments Nos. 210 to 212 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 213:
Page 31, line 10, leave out ("approval") and insert ("agreement").
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 214:
Page 31, line 15, leave out from ("with") to end of line 17 and insert ("a pre-commencement matter.
( ) But subsection (11) does not prevent a person conducting an inquiry under this section from considering facts relating to a pre-commencement matter if, and only to the extent that, consideration of those facts is necessary for him to be able to discharge his functions in relation to the subject matter of the inquiry.
( ) "Pre-commencement matter" means any act or omission which occurred, or is alleged to have occurred, before the coming into force of this section.").
The noble and learned said: I beg to move.
Lord Mayhew of Twysden: Perhaps I may ask a question. I appreciate and thoroughly support the policy implemented in subsection (11) to fulfil Patten's desire that this procedure should look forward and not backwards. Therefore, subsection (11) states:
"An inquiry … may not deal with acts or omissions which occurred … before the coming into force of this section".
However, there is a proviso in Amendment No. 214, which states that that will not,
"prevent a person conducting an inquiry … from considering facts relating to a pre-commencement matter".
I appreciate that the facts must be relevant to the inquiry. However, I do not believe that it is quite enough to say "facts". How is it to be established what is a fact and what is not? That can be established only by a process of inquiry and, in the type of inquiry which we are considering, I do not doubt that there will be provision for legal representation. However, that provides a way back into pre-commencement episodes which goes against the policy of Clause 11.
I do not expect the Minister to deal with the matter conclusively straightaway. However, I believe that he will see that it is possible to envisage that certain circumstances may arise in which an episode which perhaps occurred several years prior to the matter being inquired into will be said to be germane to the inquiry. I believe that that would be harmful. I wish that more people understood how difficult it is to establish the facts of an episode which occurred even one year ago, let alone many years ago. Therefore, if the Minister sees force in my submission, perhaps he will undertake to consider it and I shall be greatly assured.
Lord Falconer of Thoroton: Of course I shall consider it. I believe that the noble and learned Lord has identified entirely accurately the intention that the inquiry should have as its subject matter only post-commencement issues. It is recognised that in looking at a post-commencement issue one may have to go back to look at facts because events do not fit into neat pre and post-commencement categories. However, the amendment states that the inquiry can consider the pre-commencement facts,
"only to the extent that, consideration of those facts is necessary for him to be able to discharge his functions in relation to the subject matter of the inquiry".
That sets a limit as far as it is sensible to do so, having regard to the post-commencement obligation in relation to the subject matter of the inquiry.
Lord Mayhew of Twysden: But not in point of time. There is no backstop beyond which the inquiry, even with that proviso, cannot go. That seems to me the danger.
Lord Falconer of Thoroton: However, it simply recognises the basic premise that certain facts before the starting date may be relevant.
On Question, amendment agreed to.
[Amendments Nos. 215 and 216 not moved.]
Baroness Harris of Richmond Baroness Harris of Richmond had given notice of her intention to move Amendment No. 217:
Page 31, line 22, leave out subsection (13) and insert—
("(13) The costs incurred in respect of an inquiry under this section shall be defrayed by the Secretary of State.").
The noble Baroness said: I listened very carefully to what the Minister said about this matter. I was fairly disappointed, knowing that there will almost certainly be inquiries that the policing board will need to take into account. Bearing in mind the board's budget, it will be almost impossible for it to do so, and I ask the Minister to consider that point. However, there is a chink of light. I believe that I understood him to say that the policing board may bid for money to cover any inquiry that might be considered. I hope that the spirit of that will be sufficient for him to realise that we are making a very important point.
In light of the Minister's response, I shall not move my amendment.
[Amendment No. 217 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 218:
Page 31, line 28, after ("Constable;") insert—
("( ) the Ombudsman;").
On Question, amendment agreed to.
On Question, Whether Clause 58, as amended, shall stand part of the Bill?
Lord Hylton: I simply want to point out that the matter of "a sensitive personal nature" arises not only in Clause 57 but also in Clause 58(3)(b). I hope that at the next stage of the Bill government amendments will be tabled which cover both occurrences.
Clause 58, as amended, agreed to.
Clause 59 agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 219:
Before Clause 60, insert the following new clause—

Police (Northern Ireland) Bill

  MEDIATION
  (" .—(1) After section 58 of the 1998 Act there shall be inserted—
  "Steps to be taken after investigation - mediation.
  58A.—(1) If the Ombudsman—

  (a) determines that a report made under section 56(6) or 57(8) does not indicate that a criminal offence may have been committed by a member of the police force, and

  (b) considers that the complaint is not a serious one,

  he may determine that the complaint is suitable for resolution through mediation.
  (2) If he does so, he must inform the complainant and the member of the police force concerned.
  (3) If the complainant and the member of the police force concerned agree to attempt to resolve the complaint through mediation, the Ombudsman shall act as mediator.
  (4) Anything communicated to the Ombudsman while acting as mediator is not admissible in evidence in any subsequent criminal, civil or disciplinary proceedings.
  (5) But that does not make inadmissible anything communicated to the Ombudsman if it consists of or includes an admission relating to a matter which does not fall to be resolved through mediation.
  (6) If a complaint is resolved through mediation under this section, no further proceedings under this Act shall be taken against the member of the police force concerned in respect of the subject matter of the complaint."
  (2) For subsection (1) of section 59 of the 1998 Act (disciplinary proceedings) there shall be substituted—
  "(1) Subsection (1B) applies if—

  (a) the Director decides not to initiate criminal proceedings in relation to the subject matter of a report under section 56(6) or 57(8) sent to him under section 58(2); or

  (b) criminal proceedings initiated by the Director in relation to the subject matter of such a report have been concluded.

  (1A) Subsection (1B) also applies if the Ombudsman determines that a report under section 56(6) or 57(8) does not indicate that a criminal offence may have been committed by a member of the police force and—

  (a) he determines that the complaint is not suitable for resolution through mediation under section 58A; or

  (b) he determines that the complaint is suitable for resolution through mediation under that section but—

  (i) the complainant or the member of the police force concerned does not agree to attempt to resolve it in that way; or

  (ii) attempts to resolve the complaint in that way have been unsuccessful.

  (1B) The Ombudsman shall consider the question of disciplinary proceedings."
  (3) After subsection (2) of that section, there shall be inserted—
  "(2A) In a case mentioned in subsection (1A)(b), the Ombudsman shall, in considering the recommendation to be made in his memorandum, take into account the conduct of the member of the police force concerned in relation to the proposed resolution of the complaint through mediation."
  (4) In section 64(2) of the 1998 Act (regulations)—

  (a) in paragraph (b), after "resolution" insert "or mediation";

  (b) in paragraph (c), after "informally" insert "or through mediation"; and

  (c) in sub-paragraph (i) of paragraph (d), after "informally" insert "or through mediation". ").

  The noble and learned Lord said: In moving Amendment No. 219, perhaps I may also deal with a number of other amendments in this group which are associated with government amendments.
  The Police Ombudsman asked the Government to include a provision in the Bill to enable her to attempt to resolve complaints through mediation. She agreed the approach with a number of people, including Maurice Hayes, the author of the report which led to the establishment of her office, the Chief Constable and police staff associations. It is a sensible provision aimed at addressing as quickly and at as low a level as possible complaints which are not criminal or otherwise serious. In order to use mediation, the ombudsman must first obtain the agreement of the complainant and the officer concerned.
  My noble friend Lord Desai tabled Amendments Nos. 220 and 221. With the Committee's permission, I should like to deal with those along with the related Amendment No. 222 in the name of the noble and learned Lord, Lord Archer, and government
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  Amendment No. 222A. Amendments Nos. 220, 221 and 222 would enable the ombudsman to investigate police policies and practices. The Government do not accept that the ombudsman should have a roving role in commenting on such issues, and they do not believe that that is what Patten intended.
  Furthermore, the Government see such an approach as inappropriate, given that it is the role of the policing board and not the ombudsman to deal with police policies and practices. The ombudsman's primary function is to investigate police conduct.
  Nevertheless, taking account of concern in that area, the Government introduced Amendment No. 222A, which will enable the ombudsman to conduct research into reporting on policies and practices arising from her investigations into complaints. That is a sensible provision which I know the ombudsman will welcome.
  I ask the noble Lord, Lord Desai, not to move Amendments Nos. 220 and 221, and I ask the noble and learned Lord, Lord Archer of Sandwell, not to move Amendment No. 222 as I shall be moving Amendment No. 222A at the appropriate moment.
  Perhaps I may deal with Amendment No. 223 in the names of the noble and learned Lord, Lord Archer of Sandwell, the noble Baroness, Lady Harris, and the noble Lord, Lord Smith. When considered from the point of view of the policing board, that amendment appears most attractive. Of course, the Government must look at it from a number of different angles, including that of the ombudsman. There are a number of important points to be made. First, the board and the ombudsman are both independent bodies. Secondly, the ombudsman is already required to supply information to the board together with other general information which she considers should be brought to the board's attention under Clause 61. The current provision appears to be reasonable and sensible and, again, I ask for the amendment not to be pursued.
  Government Amendment No. 223A deals with the recently enacted Regulation of Investigatory Powers Act 2000. It enables the Secretary of State to make regulations covering the relationship between the Regulation of Investigatory Powers Act Tribunal, which considers complaints under the 2000 Act, and the Police Ombudsman. The ombudsman is content with the provision, as are the police. The regulations would naturally be subject to consultation with the ombudsman. At this stage I shall not deal with Amendment No. 224 in the name of my noble friend Lord Desai. I beg to move.
  6.30 p.m.
  Lord Archer of Sandwell: After my noble and learned friend has been so accommodating, it may sound almost churlish on my part if I reprimand him for a bad habit which the whole Front Bench are now getting into; that is, answering arguments before they have heard them. I have not even moved my amendment yet.

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  Perhaps I may say a word about Amendment No. 222. As at present drafted, the Bill envisages that the ombudsman will act only in relation to individual complaints and only when the process is initiated by an individual complainant. Indeed, in the other place the Secretary of State confirmed that that was the intention.
  The problem is this. The ombudsman is really the only person provided for in the Bill who will be able to investigate the impact of policing on individuals. But there are ways in which policing can have an impact on individuals which do not readily lend themselves to individual complaints. Certainly it may not always be easy to single out a specific police officer against whom a complaint is made. One example cited to me is the incident at Drumcree in 1998. Plastic bullets were fired at people in the crowd. No individuals were willing to single themselves out as making a complaint, and it was virtually impossible to identify a specific police officer who fired a specific bullet. Yet it may well call for someone who is empowered to investigate the incident and, since we are all agreed that we want to avoid an unnecessary inquiry, preferably without the necessity of establishing an inquiry.
  The clause says that the ombudsman may report on matters which come to his attention "under this part"—that means of the 1998 Act. Of course, we know that those are related to individual complaints. I am grateful for Amendment No. 222A, but, as I read it, it still confines any information which the ombudsman gives to matters arising from a complaint.
  The Patten commission declared in its recommendation 38 that the ombudsman should take initiatives and not merely react to specific complaints received. So it is not clear why she is now denied that power. I must not look a gift horse in the mouth, and I must perhaps ignore old proverbs about Greeks bearing gifts. However, between now and Report stage I promise to look carefully at the half-way house where my noble and learned friend is meeting us and I shall not take this matter further this afternoon.
  Amendment No. 223 is a probing amendment. Clause 61 imposes on the ombudsman an obligation to supply the board with necessary statistical information. The Human Rights Commission raised the question whether that exhausts all the useful information which he may give to the board. In paragraph 6.41 of the Patten report, it was recommended that he should compile data on trends and patterns, and that is no doubt what the provision addresses. But it goes on to say that he,
  "should work with the police to address issues emerging from this [statistical] data".
  So there should be what the commission calls a "dynamic cooperative relationship".
  In particular the commission recommends that the ombudsman should supply data on,
  "accumulations of complaints against individual officers".
  Yesterday, on the Freedom of Information Bill, we became involved in an interesting debate as to what is and what is not a statistic. This afternoon the noble and learned Lord, Lord Mayhew, raised the question
  382
  of what is and what is not a fact. One could spend a great deal of time on this issue in a seminar. If the ombudsman says that there is a complaint about a specific officer; that is a fact. If he says that there have been two complaints about the officer, that is a statistic. If he said that the officer was placed in a situation which made undue demands on him, that is not a statistic; it is simply information.
  I do not propose to elaborate at great length; I am not being paid to deliver a lecture. But, having answered the argument which I had not then advanced, my noble friend may wish to think about it again.
  Lord Rogan: I, too, wish to speak to Amendment No. 223. Its effect would enable the board to have sufficient information to adequately carry out the functions ascribed to it in Clause 3 of the Bill, in particular subsection (3)(c)(i).
  The board must,
  "keep itself informed [about] … (police complaints and disciplinary proceedings) and trends and patterns".
  It is my contention that pure statistical information for which the legislation provides between the ombudsman and the board, would not enable it to fulfil those obligations. While one could live in hope that the ombudsman would be generous in the supply of other information, as is common practice in Great Britain, I am anxious that that should happen in reality. My concern rests on the fact that Section 61(7) of the Police (Northern Ireland) Act 1998 provided for,
  "statistical or other general information",
  the latter may now only be provided at the discretion of the ombudsman.
  I shall be grateful for the views of the noble and learned Lord, Lord Falconer, on how he sees the police board being able to fulfil the duties I outlined if it only has statistical information. Does he not agree that the board, in order properly to keep itself informed about the workings of the complaints and disciplinary proceedings, needs access to examine completed case files? That has certainly been the experience of the complaints monitoring committee of the current Police Authority for Northern Ireland.
  Surely by not requiring the ombudsman to supply other information in effect renders the ombudsman less accountable and less transparent. I am keen to know why the legislation has been drafted so that the ombudsman is the sole determiner of what information the board will and will not need to carry out its duties effectively. I appreciate that that is how the 1998 Act was worded. But I should have thought that it makes a nonsense of openness and accountability and that this opportunity to rectify the legislation should be taken.
  If this argument were to be followed through, then Clause 63 would require amendment to enable the board and the Chief Constable to determine the access

  383
  to be afforded to the ombudsman in the exercise of her duties. For those reasons I ask the Minister to give Amendment No. 233 serious consideration.
  Lord Hylton: I welcome Amendment No. 219. Mediation can be extremely helpful and there will no doubt be circumstances in which the ombudsman could and should act as the mediator.
  As I corresponded and had a session with Dr Maurice Hayes prior to his report, it may be an appropriate moment to offer best wishes to the ombudsman in the discharge of her duties, when she starts. No doubt they will be tricky and complicated and I am sure that she will need and receive support.
  We know that the handling of police complaints was often unsatisfactory in the sense that examination never got to the root of the problem or went sufficiently deep. We hope that that will improve in future.
  I am happy to support Amendments Nos. 222 and 223, tabled by the noble and learned Lord, Lord Archer of Sandwell. I want to stress the principle that the police board should be able to decide what information it needs to carry out its functions and should not be limited only to statistical records of data.
  Lord Falconer of Thoroton: First, I apologise to my noble and learned friend Lord Archer for answering his amendments before he moved them. I did so because Amendment No. 222A is grouped with his amendments. The point he made in response to my comments about his still unmoved amendments was that the ombudsman should have a role, and he gave the example of Drumcree. The position under the Police (Northern Ireland) Act 1998 is that there does not require to be a specific complaint before an incident is investigated. The ombudsman may call herself in to investigate police conduct. That explanation may go some way towards dealing with the noble and learned Lord's point.
  The other point most touched on during our short debate was the ombudsman's position in relation to providing information, other than statistical information, to the board in relation to carrying out its functions as regards police complaints. I believe that the provision that has been made is sensible. It places a duty on the ombudsman to provide such general information which she considers should be brought to the attention of the board in connection with the police board's relevant function. The ombudsman is a public body. Someone must decide what information shall be provided because a huge range of information, other than statistical, could be provided. It must be sensible that the ombudsman is under a duty to provide the relevant information but that she shall make the decision about what will be helpful in relation to the board's performance of that function. I believe the provision to be sensible and ask Members of the Committee not to move their amendments.
  On Question, amendment agreed to.
  Clause 60 [Reports by Ombudsman to Chief Constable and Board]:
  [Amendments Nos. 220 to 222 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 222A:
  Page 32, line 11, at end insert—
  ("(2) The Ombudsman may carry out research into any matter which may be the subject of a report under subsection (1)."").
  On Question, amendment agreed to.
  Clause 60, as amended, agreed to.
  Clause 61 [Supply of information by Ombudsman to Board]:
  [Amendment No. 223 not moved.]
  Clause 61 agreed to.
  Clause 62 [Time limit for complaints and references to Ombudsman]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 223A:
  Page 33, line 7, at end insert—
  ("(d) to the extent that the subject matter of a complaint falls within the jurisdiction of a prescribed person or body, the Ombudsman shall not investigate it."").
  On Question, amendment agreed to.
  Clause 62, as amended, agreed to.
  Clause 63 [Access by Ombudsman to information and documents]:
  Lord Desai Lord Desai had given notice of his intention to move Amendment No. 224:
  Page 33, line 10, at end insert—
  ("(2) Any person who knowingly withholds from the Ombudsman such information and documents as she has required under subsection (1) shall be guilty of an offence.
  (3) A person guilty of an offence under subsection (2) shall be liable—

  (a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both:

  (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years, or to a fine, or to both.").

  Lord Archer of Sandwell: I hesitate to say "Not moved" because I may be arrogating to myself a prerogative which I do not have. My noble friend Lord Desai did not authorise me to say that, but he is not here to do so.
  [Amendment No. 224 not moved.]
  Clause 63 agreed to.
  Clause 64 [The Commissioner]:
  Lord Desai Lord Desai had given notice of his intention to move Amendment No. 225:
  Page 33, line 18, leave out from ("the") to end of line 20 and insert ("process of police reform in Northern Ireland").
  Lord Archer of Sandwell: I wonder whether I might be permitted formally to move the amendment on behalf of my noble friend Lord Desai if only because it gives me an opportunity to move my amendment which is part of the group. The list suggests that with this amendment the Committee might want to debate

  385
  Amendments Nos. 225A, 226 to 229, 237, 238, 249 and 250. Arithmetically, that includes my Amendment No. 228.
  The Deputy Chairman of Committees (Lord Ampthill): The groupings are not binding so the noble and learned Lord can perfectly well speak to his amendment without moving that tabled by the noble Lord, Lord Desai, for which he does not seem to have the authority.
  [Amendment No. 225 not moved.]
  6.45 p.m.
  Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 225A:
  Page 33, line 19, after ("Ireland") insert ("including, in particular, those resulting from this Act,").
  The noble Baroness said: I am now in a little difficulty. As a result of considering the points which lie behind Amendment No. 225, tabled by my noble friend Lord Desai, we decided to table Amendment No. 225A, which will provide that the terms of reference of the oversight commissioner should include in particular those changes resulting from the Bill. The amendment puts it beyond doubt that the implementation of Patten's recommendations includes the changes in the Bill. Therefore, I hope that my noble friend Lord Desai, when he reads Hansard, will believe that his Amendments Nos. 225 and 227 are not necessary.
  Perhaps I may speak also to government Amendments Nos. 226 and 229 to Schedule 4, which also deal with the oversight commissioner. The first honours a commitment given in another place to add a provision along standard lines dealing with the removal of the commissioner if he becomes unfit or unable to discharge his functions. The second removes an erroneous reference concerning the commissioner. I shall move those amendments when we come to them.
  Given that the oversight commissioner is already in place on a designate basis, it is appropriate for the provision formally creating the office to commence on Royal Assent. Government Amendments Nos. 237, 238, 249 and 250 have that effect. I shall reply to points raised by my noble and learned friend Lord Archer on Amendment No. 228 if he moves it. I beg to move.
  On Question, amendment agreed to.
  Clause 64, as amended, agreed to.
  Schedule 4 [The commissioner]:
  Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 226:
  Page 54, line 8, at end insert ("; or
  ("( ) become unfit or unable to discharge his functions.").
  On Question, amendment agreed to.
  [Amendment No. 227 not moved.]
  Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 228:
  Page 54, line 20, at end insert—
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  ("(3) The terms of reference shall set forth the powers of the Commission to prescribe time limits for effecting such changes.").
  The noble and learned Lord said: My noble friend Lady Farrington announced that she would riot reply to my argument before I made it. Over the years, I have learnt more from her than I can ever hope to acknowledge and I see that she is beginning to learn something from me!
  I should, first, apologise for a printing error in the amendment that I failed to notice until last weekend: the word "Commission" should be "Commissioner". Paragraph 2 of Schedule 4 prescribes that the Secretary of State shall give the commissioner "terms of reference". Subparagraph (2) states that those terms of reference,
  "shall, in particular, set out the changes in policing",
  that are now envisaged and which the commissioner is to oversee. It is significant that there are few time limits for these changes. I understand that they cannot take place overnight and that any attempt to rush them through would probably create more problems than it would solve. However, there may be those who are far from feeling a sense of urgency and who may not wish to lend any degree of acceleration to the changes. We are all familiar with situations where those who wanted to see the changes simply became exhausted and gave up because all their efforts at expedition had failed, and the inertia had ground them down. It would be a tragedy if that were to happen in this case.
  My amendment simply seeks to suggest that the commissioner should have power to inject time limits where they are appropriate. I cannot believe that the commissioner would seek to do more than use such limits where it is fairly clear that they are necessary. That is the purport of my amendment. I beg to move.
  Baroness Farrington of Ribbleton: This amendment would enable the commissioner to set time limits for change. At paragraph 19.5, Patten recommended that the Government, the police service and the policing board should provide the commissioner with objectives and timetables covering their responsibilities and that they should report on progress achieved at periodic review meetings and account for failures to achieve objectives. The commissioner can then comment on progress by way of a report. That is what will happen under the Government's proposals. It must be for the Government to set the timetable and then to be held publicly to account against it. That is what Patten recommended. However, my noble and learned friend's amendment goes beyond that which Patten called for and, therefore, I ask him to withdraw his amendment.
  Lord Archer of Sandwell: I am grateful to my noble friend. I was concerned that someone should have power to impose time limits. Perhaps I should have read through the whole of the schedule. I would then have realised what my noble friend has just pointed out to the Committee. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 229:
  Page 54, line 40, leave out ("Police Reform Commissioner for Northern Ireland") and insert ("Commissioner appointed under section 64 of the Police (Northern Ireland) Act 2000").
  On Question, amendment agreed to.
  Schedule 4, as amended, agreed to.
  Clause 65 agreed to.
  Clause 66 [General duty of Secretary of State]:
  Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 230:
  Page 34, line 6, at end insert—
  ("( ) In carrying out those functions, the Secretary of State shall have regard to the principle that the policing of Northern Ireland is to be conducted in an impartial manner.").
  The noble Baroness said: The Government committed themselves in another place to tabling an amendment to include a reference to the need to have regard to the principle that policing is to be conducted in an impartial manner. This amendment ties in with the requirement for the board, in exercising its function, to have regard to the same principle, as set out in Clause 3(4)(a). I believe this to be self-explanatory; indeed, it is not a novel measure. Under Section 37 of the Police (Northern Ireland) Act 1998 the Secretary of State was obliged to issue a statement regarding policing principles. I beg to move.
  Lord Glentoran: I have but one comment to make. It is extremely sad that we have to include such a clause; indeed, I do not think that it does the Bill any good.
  Lord Hylton: This is an excellent principle, but I just wonder whether the Government could find a rather more prominent position in the Bill to state this particular line of policy.
  Baroness Farrington of Ribbleton: All I can do is to acknowledge the fact that, on the one hand, the noble Lord, Lord Hylton, believes that we have not gone far enough and that we should have placed more emphasise on this, while, on the other hand, the noble Lord, Lord Glentoran, feels that we should not have gone so far. Perhaps, therefore, the balance rests with the Government. I hope that the Committee will support this amendment.
  On Question, amendment agreed to.
  Clause 66, as amended, agreed to.
  Clause 67 [The Royal Ulster Constabulary GC Foundation]:
  Lord Laird Lord Laird moved Amendment No. 231:
  Page 34, line 21, at end insert—
  ("( ) The foundation shall—

  (a) make provision to support the development of the RUC Widows' Association and the RUC Benevolent Fund;

  (b) make provisions for injured police officers, retired officers and their families.").

  The noble Lord said: I have talked on a number of occasions in this Chamber about the hardship
  388
  experienced by widows and disabled policemen in Northern Ireland. I should like to put on the record the fact that I have had discussions with the noble and learned Lord, Lord Falconer, and discovered that he is a compassionate man with regard to this topic. He has been helpful in preparing a way to secure better conditions, especially for the widows, some of whom have been living in scandalous circumstances. I do not want to rehearse the arguments that I put forward previously, but I should like to place on the record the case of one widow in Northern Ireland who has been widowed for several decades and who, after inflation, lives on a £134 per month RUC widow's pension.
  We are asking that there should be recognition of the widows, the disabled and injured police officers and of retired police officers and their families. We ask that there should be support for them by way of inserting the additional points outlined in the amendment into Clause 67, which refers to the Royal Ulster Constabulary George Cross Foundation. Obviously, we have no objection to the latter; indeed, we believe that it is an extremely good idea. However, we urge the Government to help us with the widows, the disabled and injured police officers and with retired policemen and their families. I beg to move.
  Baroness Harris of Richmond: I support the noble Lord, Lord Laird, and the other noble Lords who have attached their names to this amendment. I agree wholeheartedly with its intention. It was an express recommendation of Patten that a substantial fund should be established to assist injured officers, both retired and serving, as well as their families and their widows. I congratulate the Government on having conducted a review of that recommendation and look forward to hearing the outcome, which, I believe, will be announced shortly.
  The people whom this fund is intended to assist are, to my mind, entirely deserving of whatever assistance the Government can give. Some officers have paid the ultimate price for simply doing their duty. Although I feel for the widows left behind, I know that I cannot begin fully to imagine the pain that they must suffer each day. No amount of money can repay them for that pain. Other officers have sustained serious injuries as a result of doing their job—that is to say, upholding the law in Northern Ireland and preserving the peace for the citizens of the Province. They, their children, husbands, wives and those in the wider family circle are reminded on a daily basis of the sacrifice that they have given. Equally, they cannot be repaid for the price that they have paid.
  None the less, if the fund is substantial and properly administered, I believe that it could help to ease some of the burden that I know is carried by widows of officers and by injured officers and their families. No one can compensate them for their loss, but they deserve to be looked after. I reiterate my support for a fund that would achieve just that aim.
  7 p.m.
  Baroness Park of Monmouth: I, too, strongly support all that has been said. I am particularly concerned for the Disabled Police Officers Association. I know that there is a reference here to injured police officers, but there is a specific group which has suffered terribly. Many are tetraplegics and paraplegics. Their families necessarily live in extraordinarily painful conditions. Quite apart from poverty and pain, they have the considerable problem of trauma. To do anything about all of that costs money. I therefore hope that specific provision will be made for the Disabled Police Officers Association with the rest, and that as much money as possible will be made available. I should like to return on Report to pursue the point further in terms of bringing pressure to bear for their compensation to be reviewed.
  Baroness Strange: I support the amendment, which is noble and honourable. This is something we should all do to support the widows and orphans. Those of us who are lucky enough not to be widows and certainly an orphan know how people feel. They suffer a great deal of pain. They have been pursuing their duty and we really owe this to them. I hope the Government will support the amendment.
  Lord Eames: Next Sunday I shall be dedicating a memorial window to officers of the Royal Ulster Constabulary in a certain area who have paid the supreme sacrifice. I can tell at this moment the congregation I shall look at. I simply say to the Minister that any generosity found possible by Her Majesty's Government in the days to come would be responding to a great need in our society at home. I would gladly welcome what was offered.
  Lord Glentoran: I have two comments: first, I made representations to the Minister and his right honourable friend on this subject some months ago. I support the idea and the principle of the amendment. I am a little concerned that maybe paragraph (b) could lay the foundation for getting involved with pensions and so forth. If the Minister is minded to accept the amendment, I would ask him to ensure that it is drafted in the Bill in such a way that the foundation is not laid for getting into an area in the statutory business of pensions. However, I support the amendment.
  Lord Hylton: I am happy to support the amendment moved by the noble Lord, Lord Laird. Indeed, bearing in mind what I said on Monday, I hope he expected that I would. However, perhaps I may put a small drafting point to the noble Lord and to the Government. It concerns the last word in the amendment; that is, "families". That may be too wide. The Minister may like to consider substituting
  390
  "dependants", which is tighter wording that might prevent unnecessary or frivolous applications to the proposed foundation.
  Lord Monson: It is only right that yet another voice from this side of the water should rise to support the principle of this excellent amendment.
  Viscount Brookeborough: I support the amendment. The widows, the injured and the retired are proud and honourable. Rather like the war widows, discussed in recent months in this place, they will not go begging. The reason we are here is to look after people who have given such service to their country. We should do that by introducing, if not this amendment, an amendment to the same effect.
  Lord Archer of Sandwell: Lest it be thought that silence from these Back Benches betokens any lack of enthusiasm for the amendment, perhaps I may say that we are wholly behind it. We think that it is admirable and we are delighted to see it.
  Lord Falconer of Thoroton: The Government entirely agree with the sentiments expressed in the amendment. The noble Lord, Lord Laird, has been a persistent and effective advocate on behalf of injured policemen and the widows of policemen. I readily acknowledge the work of the RUC Benevolent Fund and the fine job it does for members and former members. With regard to the RUC Widows' Association, the Government have already fully met Patten's recommendation 88 that it should be given an office free of charge and a regular source of finance adequate to run its organisation. I am pleased to report that the widows' association is now conducting its affairs from premises adjacent to the Police Rehabilitation and Retraining Trust in Belfast and has agreed with the Secretary of State the amount of financial support which it believes is needed to provide reasonable funding for its organisation.
  As regards the second part of the amendment, the Government are committed to implementing recommendation 87 of the Patten report which states that a substantial fund should be set up to help injured police officers, injured retired officers and their families, as well as police widows. Noble Lords will recall that I prefaced my comments at Second Reading on 27th July by announcing that the Government had appointed the highly respected former Northern Ireland Office civil servant John Steele to examine and make recommendations about the needs of those listed in this amendment and arrangements for establishing and administering such a fund. I know that his report will be presented to the Secretary of State by the end of this month. In substance, therefore, the Government are already going beyond what the amendment seeks to do.
  I turn to the RUC GC Foundation. The noble Lord will recall that the Government set up this foundation in response to Her Majesty's fitting award of the George Cross to the RUC to mark the sacrifices and honour the achievements of the brave officers of the

  391
  RUC and their families. A working group set up by the Secretary of State is currently considering how best to give effect to those proposals, though noble Lords will see listed in Clause 67 of the Bill that the general thrust of the foundation is towards the professional development of police officers and innovations in policing. Invitations to sit on the working group have been extended to the Police Federation, the superintendents and the Chief Police Officers Staff Association.
  The noble and learned Lord, Lord Mayhew, referred on Monday to the possibility of fortification of the RUC GC Foundation with a royal charter. That, of course, is not something within the Government's gift. However, I understand that the Secretary of State would seek to support any such application that might be made by the foundation. For all those reasons I would ask the noble Lord to withdraw his amendment.
  Lord Laird: I thank the Minister for his words, and other noble Lords who have spoken in support of the amendment. I am prepared to withdraw the amendment. However, I should like to discuss the issue with the Minister and perhaps refer back to it on another occasion. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 67 agreed to.
  Clauses 68 and 69 agreed to.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 232:
  After Clause 69, insert the following new clause—

PLACES OF DETENTION: LAY VISITORS
(" .—(1) The Board shall make, and keep under review, arrangements for designated places of detention to be visited by persons appointed under the arrangements ("lay visitors").
(2) The arrangements shall require a report on each visit to be made to the Board and the Chief Constable by the lay visitor concerned.
(3) The report shall deal with—

(a) the conditions under which persons are held in the designated place of detention concerned and with their welfare and treatment;

(b) the adequacy of facilities at that place of detention;

(c) such other matters as may be specified in an order made by the Secretary of State.

(4) The arrangements may confer on lay visitors such powers as the Board considers necessary to enable the report required as a result of subsection (2) to be made and may, in particular, confer on them a power toߞ

(a) require access to given to each designated place of detention;

(b) examine records relating to the holding of persons there;

(c) interview persons who are being held there;

(d) inspect the facilities there including, in particular, washing and toilet facilities and the facilities for the provision of food.

(5) A power conferred as a result of subsection (4)(b) or (c) may be exercised only with the consent of the person concerned.
(6) Any power conferred by the arrangements may be subject to such limitations as may be specified in the arrangements.
(7) The arrangements shall provide that a person may not be appointed as a lay visitor if—

(a) he is a member of the Board; or

(b) he is, or has been, a police officer.

(8) The Board may issue, and from time to time revise, guidance to lay visitors about the discharge of their functions under this section.
(9) "Designated place of detention" means a police station for the time being designated under Article 36 of the Police and Criminal Evidence (Northern Ireland) Order 1989, except so much of the station as is for the time being designated for the purposes of paragraph 1 of Schedule 8 to the Terrorism Act 2000.
(10) The Secretary of State may by order specify as designated places of detention for the purposes of this section—

(a) a part of any police station if that part is for the time being designated for the purposes of paragraph 1 of Schedule 8 to the Terrorism Act 2000.

(b) any other place which is designated under any enactment as a place in which persons may be detained.").

On Question, amendment agreed to.
Clause 70 agreed to.
Schedule 5 [Application of anti-discrimination legislation to the police]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 233:
Page 58, line 43, leave out ("member of the Police Service of Northern Ireland") and insert ("police officer").
On Question, amendment agreed to.
Schedule 5, as amended, agreed to.
Clause 71 agreed to.
Clause 72 [Orders and regulations]:
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 234:
Page 35, line 29, at end insert—
("(3A) A draft of a statutory rule to be made under section 46(3) or 52 shall be laid before Parliament in like manner as a draft of a statutory instrument and section 6 of the Statutory Instruments Act 1946 shall apply accordingly.").
The noble Baroness said: Earlier in today's Committee proceedings my noble and learned friend Lord Archer referred to the unfortunate practice which he felt was growing of Ministers responding to amendments before they have been moved. On this occasion and in moving Amendment No. 234, I point out that most noble Lords have already spoken to it, and others, before the Government have moved it.
This amendment will give effect to the recommendations of your Lordships' Select Committee on Delegated Powers and Deregulation. Amendments Nos. 234 and 235 provide for orders and regulations under Clause 46, on the renewal and expiry of the 50:50 recruitment provisions, and under Clause 52, on emblems and flags, to be made by the affirmative procedure. The Committee also recommended that orders under Clause 49, on registration, be made by the affirmative procedure. But the Government's amendment to that clause has removed the Secretary of State's order-making power. In the light of that provision, I suggest that

393
Amendment No. 234A in the name of the noble Lord, Lord Glentoran, to Government Amendment No. 234 has become unnecessary. I beg to move.
Lord Cope of Berkeley Lord Cope of Berkeley had given notice of his intention to move, as an amendment to Amendment No. 234, Amendment No. 234A:
Line 2, after ("46(3)") insert (",49(2)").
The noble Lord said: As the noble Baroness has pointed out, Amendment No. 234A was intended to take up the other recommendation which we believe that the Government should have dealt with. However, as the noble Baroness has said, that has now become unnecessary because of the amendment we made earlier this afternoon.
[Amendment No. 234A, as an amendment to Amendment No. 234, not moved.]
On Question, Amendment No. 234 agreed to.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 235:
Page 35, line 30, after ("one") insert ("made under a provision mentioned in subsection (3A) or").
The noble Baroness said: I spoke to this amendment with Amendment No. 234. I beg to move.
On Question, amendment agreed to.
Clause 72, as amended, agreed to.
Clause 73 [Interpretation]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 236:
Page 36, line 37, at end insert—
("( ) Subsections (2) to (4) of section 39 of the Interpretation Act (Northern Ireland) 1954 apply for the purpose of calculating a period of time laid down by or under this Act.").
On Question, amendment agreed to.
Clause 73, as amended, agreed to.
Clause 74 agreed to.
Schedule 6 [Amendments]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No, 237:
Page 62, line 46, leave out ("entries") and insert ("entry").
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 238 to 240:
Page 62, line 47, at end insert—
("(4) In that Part of that Schedule, at the appropriate place in alphabetical order insert the following entry—").
Page 66, line 7, leave out ("Force").
Page 66, line 17, leave out ("and (4)").
On Question, amendments agreed to.
Schedule 6, as amended, agreed to.
Schedule 7 [Transitional and transitory provisions]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 241 to 248:
Page 67, line 34, leave out sub-paragraph (a).
Page 67, line 36, leave out ("police service") and insert ("Police Service of Northern Ireland").
394
Page 67, line 39, leave out ("police service") and insert ("Police Service of Northern Ireland").
Page 67, line 42, leave out ("member of the police service") and insert ("police officer serving in the Police Service of Northern Ireland").
Page 67, line 44, leave out ("member of the police service reserve") and insert ("police officer serving in the Police Service of Northern Ireland Reserve").
Page 68, line 1, leave out ("police service reserve") and insert ("Police Service of Northern Ireland Reserve in any other context").
Page 68, line 3, leave out ("police service") and insert ("Police Service of Northern Ireland").
Page 68, line 4, at end insert—

PLACES OF DETENTION: LAY VISITORS

  Recruitment arrangements: references to the Board.
  . At any time before the commencement of section 2, references in sections 43 to 47 to the Board shall be construed as references to the Police Authority for Northern Ireland.").
  On Question, amendments agreed to.
  Schedule 7, as amended, agreed to.
  Clause 75 [Commencement]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 249 and 250.
  Page 37, line 23, at end insert—
  ("( ) sections 64 and 65;").
  Page 37, line 24, at end insert—
  ("( ) Schedule 4;
  ( ) paragraphs 3(4) and 4(3) of Schedule 6 and section 75(1) so far as relating thereto;").
  On Question, amendments agreed to.
  Clause 75, as amended, agreed to.
  Clauses 76 and 77 agreed to.
  House resumed: Bill reported with amendments.

Business
Lord Carter: My Lords, exercising my pastoral care as Chief Whip and for those noble Lords who have been engaged on the Police (Northern Ireland) Bill and who will also be engaged on the Freedom of Information Bill, I beg to move that the Committee stage of that Bill be postponed until after the Question standing in the name of the noble Lord, Lord Dormand of Easington.
Moved accordingly and, on Question, Motion agreed to.

Education in County Durham
7.17 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
Whether they will investigate the complaint made by Durham County Education Committee against Ofsted's conduct in relation to the inspection of certain schools in County Durham in 1997 and the subsequent actions taken by Ofsted.
The noble Lord said: My Lords, the complaint by the County Durham Education Authority was made initially three years ago and has involved Ofsted itself, the Ofsted adjudicator and Her Majesty's Chief Inspector, Mr Chris Woodhead. The fact that the matter has not been resolved after such a long period is a measure of the concern felt about it by the Durham LEA. The latest position is that Ofsted has apologised to the Durham County LEA, to the Director of Education and to another member of his staff. Mr Woodhead has also sent a letter of personal apology on the same basis.
Durham LEA is continuing to press the complaint because although at long last the apologies recognise errors which Ofsted has denied for three years, no action has been taken to deal with what are clearly major professional blunders and deficiencies, but also because the issues of systemic and constitutional significance which have been exposed at the heart of Ofsted need to be dealt with nationally.
It is one of the main contentions of the LEA and myself that Her Majesty's Chief Inspector is accountable to no one, not even Ministers. In addition, the parliamentary ombudsman has confirmed his lack of jurisdiction to deal with the case.
The facts and implications of the case fall into two parts: first, the behaviour of the registered inspector working for Ofsted and the failure of Ofsted to deal with that situation. The second and wider issue is concerned with the situation within and throughout Ofsted, implicating Her Majesty's Chief Inspector himself.
In 1997 Durham LEA was aware of a number of school inspections in its area carried out by the same registered inspector working for Ofsted where schools had complained to the LEA that the lady in question was abusing her position. Although the final reports on those schools were satisfactory, and in many cases outstanding, for most of the week of the inspections the registered inspector in question threatened the schools with being classed as failing schools. Her behaviour was reported by a number of schools, including other schools and other LEAs across the whole region.
One school in the County Durham LEA area asked the authority for assistance during its inspection because of this treatment, and a complaint was subsequently made by the LEA to Ofsted about this registered inspector. That seems to me a natural action which any LEA would have taken. The complaint was, in fact, made on behalf of a number of schools in the LEA. I have been informed that other LEAs in the North East have also complained about the same inspector.
During one of the inspections the head teacher and chair of governors asked the LEA for assistance because of the hostile way in which they were being treated. As a result the Director of Education asked one of the LEA's senior inspectors to visit the school. Again I should have thought that was a natural action for the director to take.
Ofsted complained to the LEA about what it called an "intrusion", to which the LEA replied in the strongest terms saying that Ofsted's view was based on having heard only one side of the story. Ofsted's own adjudicator some two years later in her report on the matter said that Mr Woodhead's behaviour had been "unwarranted" and "implicitly threatening" and Mr Woodhead apologised. I am bound to say that the words that I quoted are just about as strong as any words could be in those circumstances.
There is another aspect of this matter which is quite astonishing. The LEA in its complaint had asked Ofsted to review the whole of the work of the registered inspector in question because of the number of complaints from a number of LEAs. For two years Ofsted in letters to the Durham Director of Education said it was neither possible nor proper to carry out such a review. Some two years later when the matter was referred by the LEA to the Ofsted adjudicator, the LEA learned that Ofsted now told the adjudicator that in fact it had carried out such a review two years earlier. I hesitate to say that this involved deliberate lying, but it is obvious that a detailed explanation should be forthcoming, but it has not been forthcoming at any time. The LEA is also entitled to question the adequacy of the review, on which the adjudicator said,
"It seemed to me that the complainant (that is, the LEA) had a right to be satisfied that OFSTED had considered the LEA's concerns in the context of other relevant concerns about the inspector".
I turn to what might be called the constitutional implications, the personal position of Her Majesty's Chief Inspector, and the lack of accountability which this whole episode demonstrates. The key point is this: we know that the episodes took place—there is no denying that—and that Ofsted eventually accepted it and apologised for it. However, we do not know why it happened because Mr Woodhead has never been asked to explain his conduct. Ofsted maintained that a full investigation was carried out, but how could that have been done when Mr Woodhead was not interviewed, or, indeed, as I understand it, consulted at any stage? That is a most peculiar situation.
This, of course, opens up the question of accountability. It appears that Her Majesty's Chief Inspector is accountable only to Parliament, and, if this is so, what form will it take? In a case such as this, will a printed report be tabled in both Houses of Parliament? Without such a report it is difficult to see how a proper judgment can be made on such important issues. I have to ask my noble friend on the Front Bench whether, in the face of such serious events, Ofsted itself has taken steps to prevent a recurrence of the significant and serial failings exposed by these complaints? I should have thought too that intervention by the Government was essential.
It really amounts to "who inspects the inspectors?" No one would expect that Ofsted would carry out its work without mistakes being made, but when deficiencies of this scale are exposed it is imperative for

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the good of the education service in the country as a whole that the machinery and the personnel involved be subjected to the closest scrutiny.
My Question today asks whether the Government will investigate these complaints. There can surely be no doubt about the need for an investigation, not only because of what has happened in County Durham but also because of the implications for the education service in the rest of the country. I conclude by saying that that seems to me to be a matter of absolutely fundamental importance. I hope that I receive a satisfactory reply from my noble friend on the Front Bench.
7.27 p.m.
Baroness Walmsley: My Lords, I am grateful to the noble Lord, Lord Dormand of Easington, for giving us the opportunity to discuss a very important issue. What we have heard about Ofsted's behaviour in Durham has had echoes in other places and raises issues about Ofsted which warrant serious scrutiny.
May I first of all stress that we on these Benches support the need for a tough and effective, high quality and accountable independent schools inspection service in the interests of raising standards. I therefore propose to address my remarks to these three desirable qualities for Ofsted in the light of the issue which the noble Lord, Lord Dormand of Easington, has brought to the attention of the House.
Let us first look at the effectiveness of Ofsted. As a parent, teacher, school governor and employer, I have always found the carrot more effective than the stick in delivering results. The Minister will undoubtedly relate to us statistics to show how standards have been rising. However, one of the many problems with Ofsted is that it is very good at wielding the stick but does not seem to have much idea about the carrot. That is why one of the ways in which we should like to see Ofsted reformed is by giving it a duty to help schools rather than intimidate them, to take a more developmental role, and to get involved with schools following inspections. If it was able to do that, who knows how much better the statistics could be? And perhaps we would not be facing the very real twin crises of teacher morale and teacher shortage.
Despite the guidelines in the new framework for inspections about being sensitive to teachers in the way feedback is given, we still see situations similar to that in Durham with teachers demoralised by the Ofsted process rather than helped by it.
Moor Lane School in Chessington, as highlighted in another place in July by my honourable friend the Member for Kingston and Surbiton, is another example of where things were badly handled. In that case the whole staff resigned when an Ofsted follow-up inspection recommended that the school be put into "special measures", despite considerable progress on its action plan. That case brings me to the question of whether we have a high quality independent inspection service.
One of the reforms on my shopping list is to end the current system of bidding for inspections, ensuring that all inspections are led by HMI, with a standard
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national fee for all members of inspection teams. We would also like to see some monitoring of the effects that competition for inspection contracts has on the ability of contractors to invest in quality assurance measures. The findings should be made public.
Clearly, teachers, parents and governors are going to be more willing to accept the findings of a high quality Ofsted service they can respect. If they are convinced that the inspection has been a thorough one, carried out by competent people with relevant experience and taking into account all appropriate evidence, they will buckle down and address the areas of weakness identified. But where we have cases such as one I heard about recently where a school for profoundly deaf children was inspected by a team only one of whom had any experience of teaching children with this problem, we are bound to have a crisis of confidence.
In the Chessington case, the extreme strategy of special measures was triggered by a snapshot follow-up inspection where only five hours of lessons were monitored. Where time for classroom inspection is as limited as that, surely it makes sense to look for corroborative evidence. However, no reference at all was made to the officers of the local authority who knew more about the school than anybody, nor the imminent publication of SATS results. Those results were excellent and might have informed the inspectors' conclusions, but they were ignored.
In this case too the Chief Inspector of Schools interfered without doing his homework. He appeared on television saying that the school should have pulled its socks up following the 1995 inspection. He did not appear to know that the inspection had in fact been very positive about the school, while identifying areas for improvement—as all inspections do.
This raises very serious questions about the worrying tendency of Chris Woodhead to shoot from the hip and make pronouncements about all sorts of issues on which it is not appropriate that he should speak. For example, he has recently had an uncanny habit of commenting favourably on the pronouncements of the Official Opposition about education matters. I refer in particular to his comments during the summer about the "free schools" idea which I should have thought went well beyond his brief.
So we seem to have a common thread here between the Durham and the Chessington cases from which I would hope Ofsted would learn a lesson. In both cases the inspectors seemed unwilling to work with or trust the LEA, even though those LEAs had been found, on their own Ofsted inspections, to be trustworthy and competent. One cannot leave the LEAs out of the picture when looking at how schools can be helped to raise standards. I was staggered recently to see an extract from the Ofsted inspection of Worcestershire County Council, which was found to be "too supportive" of its schools. I do not believe that it is possible for LEAs to be too supportive of their schools. Of course, schools must take responsibility, but so must LEAs and they should be encouraged to do so, not criticised for it.

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Moreover, we on these Benches believe that it should be the duty not only of the Government and the LEAs but also of Ofsted to encourage and offer advice to schools, and that is why we would like to see the arrangements that prevent Ofsted from doing that changed. To separate the identification of problems from the means of putting them right is a great mistake. If this change were made it could remove, at a stroke, the tendency for teachers to see Ofsted as the enemy and not as an ally in the fight for higher standards and would remove a great deal of the stress associated with the process of inspection. If inspectors could not only show schools where they were going wrong but enable and help them to do better, they would be seen in a totally different light.
This, of course, brings me back full circle to the issue of the effectiveness of Ofsted. If a system of inspection is putting such unwarranted stress and additional workload on teachers that they have time off with stress-related illnesses or, worse, commit suicide, there is something wrong with it. If it demoralises a whole staff to the point where they all leave a school which has been making good progress, there is something wrong with it. If the system precludes taking evidence from those in the LEA who know most about the school, it is flawed and needs reforming.
Finally, I turn to one of the most serious shortcomings of the way Ofsted operates—the issue of accountability. We need a stronger, clearer mechanism to ensure that Ofsted is fully accountable. I echo the words of the noble Lord, Lord Dormand of Easington. The question is "Quis custodiet ipsos custodes" which, roughly translated, means, "Who keeps an eye on Ofsted?" What sort of sinecure is it where someone becomes an Ofsted inspector—or even a chief inspector—and once appointed is accountable to no one? In accepting that not every teacher is perfect, we must also accept that not all inspectors, or chief inspectors, are perfect and must, therefore, be subject to monitoring themselves. The Education and Employment Select Committee in another place in its report on Ofsted last year appears to agree. It recommends a series of sensible suggestions about how this could be done which we on these Benches would support. They include ensuring a regular debate in another place on Her Majesty's Chief Inspector's Annual Report; an annual meeting between HMCI and the Select Committee; ensuring that Parliament has an advisory role in the appointment of HMCI; and establishing an advisory board for Ofsted which would also handle the complaints procedure. I am sure that your Lordships can see the relevance of the last idea, in particular to the topic of this debate.
I come back to the question of what Ofsted is for. If it is to raise standards it must help schools to be effective. But if our secondary schools are suffering a chronic shortage of teachers they will not be effective. The profession is bleeding. Too many experienced teachers are taking any opportunity to jump ship. Despite the Government's recent measures, too few students are applying for initial teacher training, particularly in maths and physics. This cannot go on.
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We have a crisis of morale in the profession and the modus operandi of Ofsted plays a very big role in that. Winston Churchill said, "Give us the tools and we will finish the job." Too many teachers are saying, "If you don't give us the tools we'll quit the job." I speak to many teachers. I can tell your Lordships that morale is at an all-time low. Dedicated teachers—I would never have believe in a thousand years that they would say it—are saying that they would leave tomorrow given half a chance. This is very sad and a great waste if they carry out their threat. We have to plug the hole in the bucket before we start trying to fill it.
We expect a lot of our teachers—rightly so, since they care for our precious children. But I urge the Minister to ensure that Ofsted is reformed to become more effective and accountable and that the chief inspector learns the lessons of the Durham case and acts accordingly.
7.39 p.m.
Baroness Blatch: My Lords, I am concerned about perspective in this debate. The Motion on the Order Paper relates to Durham and Durham schools. It is essential that we address that specific issue in this debate. The noble Baroness, Lady Walmsley, made little reference to Durham except in her final sentence.
First, I want to say something positive about Ofsted. I am proud to have belonged to a party which introduced external inspection for all schools. Before that, the average school could expect to be inspected about once in every 300 years. As a system, that was indefensible. It seemed to me right that there should be regular external inspections of our schools.
The previous government and the present one have benefited enormously from knowing what goes on in our schools and what their strengths and weaknesses are. The schools and the teachers in the classroom also benefit from that information and the databank that has been built up over the years from external inspection.
The activities of the inspectors could not be more public. Like the noble Baroness, Lady Walmsley, I have been a governor and I know that the first act of an inspectorate is to discuss the school and its performance with the governors. The staff are considered; the reports are made public; they are discussed at an interim stage and at the final stage and the final version is published and made available in public places. The parents are made aware of the report and any necessary action plans are followed up. We have a great deal to be thankful for from a regular objective external inspection system.
My other point is specific to Durham. As a Minister I always argued that when a complaint was being made about a service, a system or an individual, it was important that all the information relating to the complaint should be very specific. I have tried to find out the problem in Durham. My understanding is that, although there was considerable disquiet about the inspection of a particular school where I understand that a local education authority inspector interfered during the inspection, the authority refused to allow

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the subsequent review of the inspector's work any contact with the school. A complaint cannot be reviewed without going back to inspect the school.
The noble Lord, Lord Dormand of Easington, and the LEA have made general comments about other, unnamed schools. That is unfair when complaining about any organisation. Complaints should be detailed properly. The schools and their particular complaints should have been detailed.
Reference has already been made to the fact that Ofsted is answerable to a parliamentary Select Committee. It was suggested that it should appear before the committee at least annually. That is a matter for the Select Committee. Ofsted has to come if it is summoned. Parliament receives the report and we have an opportunity to consider it.
It is right to go back and look at the thousands of inspections that have taken place since the inception of Ofsted and the number of governing bodies and schools that have used them as management tools to address the issues that arise from the reports. Parents feel much better informed as a result of the work of Ofsted. Its work is made public and it is accountable to every parent, every teacher, every governing body, the Department for Education and Employment, and Parliament, through the Select Committee. It is wrong to say that it is unaccountable and to expand on one particular complaint to condemn the whole system. It is uncharacteristic of the noble Lord, Lord Dormand of Easington, to use phrases such as "major professional blunders" and to make an even more serious complaint that Ofsted was deliberately lying.
Lord Dormand of Easington: My Lords, if all the people concerned, including parents—we do get complaints from parents—felt, as a result of a number of incorrect comments made during an inspection, that an inspector was not up to the job, who would have the power to dispense with their services?
Baroness Blatch: My Lords, I shall come to that point in a moment. I was talking about the serious accusation that Ofsted deliberately lied.
Lord Dormand of Easington: My Lords, I am sorry to interrupt again, but I did not say that. I said the opposite. I went on to say that there should be a full explanation. That seems obvious to me.
Baroness Blatch: My Lords, I, too, shall look at Hansard tomorrow, but the noble Lord said, "That was a lie".
Lord Dormand of Easington: No.
Baroness Blatch: I was listening very carefully and wrote the words down as the noble Lord said them. If I heard wrongly, I shall not hesitate to apologise to the noble Lord.
Many generalised comments have been made, but there is a poverty of specific comments. My understanding is that when the LEA made the
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complaint, Ofsted was banned from going back to the school, but there was a thorough investigation of the procedures used by the inspector in question and the way in which she conducted her business in the school. The complaint was not upheld.
There was also considerable disquiet on the part of Ofsted and of the inspector herself about the unprofessional interference with the inspection by the LEA's inspector. The independent Ofsted complaints adjudicator thoroughly reviewed the case and concluded that it was not necessary or appropriate to reinvestigate the complaint. That is important. However, having said that the case did not need further reviewing, the independent adjudicator said that it was unnecessary for the words of the chief inspector to be communicated to the complainant and that the wording of Ofsted's response was implicitly threatening. Ofsted and the chief inspector had no hesitation in accepting that criticism and made a fulsome apology, which has since been repeated. The apology was not an admission of defeat; it said that the inspector had come to a legitimate conclusion. Ofsted accepted that such comments did not present a non-judgmental opinion of the chief inspector.
After the first review, the second review by the adjudicator and a further look by the legal department at the whole affair, it was further said that there vas no basis for a claim that the chief inspector had acted ultra vires. However, he offered a second fulsome apology, even though he was not involved in the inspection in question and the complaint related to a particular inspector.
The noble Lord, Lord Dormand of Easington, asked what was to be done about inspectors not performing. That is the responsibility of the chief inspector, if proven, but there is a complaints procedure to be followed. A school should raise properly detailed complaints initially with the inspection contractor. If it is unable to resolve its concerns, it should then write to the registrar at Ofsted, setting out in detail the grounds for the complaint. If it involves criticism of a contractor, registered inspector or team member, Ofsted will invite them to respond and will use any monitoring information available to reach a considered view. After inquiries have been carried out, the complainant will be sent a full response and, in appropriate cases, Ofsted may take further action on the inspector. If the complainant is dissatisfied with the way that his complaint has been handled, Ofsted has an internal review procedure operated by the competition and compliance team which reviews the handling of complaints to ensure that the procedures have been properly followed. If the complainant remains dissatisfied, he may ask for the case to be considered by the Ofsted complaints adjudicator, an independent, external arbiter.
All of that was done. But I must say that the complaint lacks some real detail. Certainly, it brings in all the other schools, again unnamed. It certainly lacked specific detail. But it was reviewed a first time; it was reviewed a second time by the independent

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adjudicator; it was looked at again by the legal people. I understand that it is now to be considered by the Select Committee.
The noble Baroness, Lady Walmsley, painted a desperately gloomy picture. She seemed to be saying that the low morale in schools is all down to Ofsted. I find that extraordinary. The picture is not that gloomy at all. I believe that Ofsted has done a very good job. I agree with the noble Baroness that where there are complaints, they should be properly and independently considered. Teachers should have confidence in the system. The DfEE should certainly take all complaints seriously.
I was disturbed to hear the Minister—not the Minister in this House—suggest that the complaint should be taken to the ombudsman. If he was properly advised, he should know that that was not possible. The noble Lord, Lord Dormand, is absolutely right to say that the ombudsman does not have jurisdiction to look at the matter. But perhaps the DfEE should have taken greater note of the complaint. If it really felt that there had been an injustice, it could perhaps have done something to make the LEA feel that its complaint had been taken seriously.
Indeed, I believe that it was incumbent on the DfEE, if it had faith in the Ofsted way of dealing with the complaint, to say to the LEA in Durham some of the things that I have said today: that the complaint had been looked at properly the first time, a second time and that, indeed, the legal department had looked at it a third time. It would have been helpful if the DfEE had said that.
I return to my first point. I believe that Ofsted has served the country well. The system for dealing with complaints should be sensitive. We should continue to build up the confidence of the teaching profession, parents and governors in the work that Ofsted does. My statistics are two years out of date, but looking at the number of inspections and the percentage of complaints, on balance, I give Ofsted a fairly good report.
That is not to say that one should be complacent. If there has been serious wrongdoing, I do not know what else the system can do to deal with it. This matter has been looked into three times already. It is now for the DfEE to say either that it is satisfied with what Ofsted did or that it is dissatisfied. If it is dissatisfied, this is the forum in which that complaint should reside.
7.53 p.m.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, I begin by welcoming the noble Baroness, Lady Walmsley, to the Front Bench. I believe that this is the first occasion on which she has spoken from the Front Bench.
I want also to thank my noble friend Lord Dormand for initiating this debate. Education is this Government's highest priority and Ofsted has a central place in carrying forward our agenda for raising standards in schools. Ofsted and regular school inspections are, as the noble Baroness, Lady Blatch,
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said, now a well-established part of the education landscape. I rather accept what she said. This debate is specifically about a particular complaint by the local education authority in Durham and I am not sure that I shall be able to answer all the much more general questions which the noble Baroness, Lady Walmsley, asked.
But I repeat that Ofsted is now an accepted part of what we do to maintain standards in our education system and the debate has moved on from whether external inspection is necessary—that argument has been won—and is now about how inspection can continue to develop and improve so that it can play the most effective possible role in raising standards.
I would like to say something first about the particular case that my noble friend has drawn to our attention and then turn to the wider issues of status and accountability that he has also raised.
The case in question dates from as long ago as 1997. It seems to me to demonstrate very well the role of the Ofsted Complaints Adjudicator, Elaine Rassaby, who reported in some detail on the case in her first annual report, published in September 1999. In going through this case, I shall repeat one or two of the points made by the noble Baroness, Lady Blatch, but it is important that I, as the Minister, should do so for the record. The adjudicator made some specific recommendations, and secured an apology from Ofsted to the local education authority about some aspects of its handling of the case. More information was made public and internal procedures were changed as a result. This suggests to me that the complaint has been taken seriously and has indeed contributed to that process of improvement and refinement that I mentioned.
As we have heard, the authority's initial specific complaint was about a registered inspector's behaviour in one school. Elaine Rassaby concluded that that had been properly investigated, although the fact that the authority specifically requested that the school involved should not be contacted clearly made detailed investigation very difficult.
The adjudicator did however ask Ofsted to be clearer about the reasons why special measures—a serious judgement of school failure—had been mentioned by the inspector as a possible outcome when the final report did not justify that. Ofsted wrote to the LEA with an explanation of how the weaknesses identified in the report justified early consideration of special measures.
The second complaint was a more general one about the inspector's conduct in other schools. Durham LEA asked for a general investigation to be held and wanted information about how many other complaints had been made. Ofsted did in fact carry out that wider investigation. But it did not tell Durham LEA. Elaine Rassaby thought that to be an error of judgment, and did inform Durham that that wider investigation had been undertaken.

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On the issue of sharing information about numbers of complaints, Ofsted was bound by the code of practice on access to government information. Elaine Rassaby suggested it should again make that explicit to Durham LEA. That has been done.
The third strand to the complaint arose out of the registered inspector's response to the initial complaint. A counter allegation was made of improper conduct against a local authority inspector who visited the school at the time of the inspection. The local authority inspector was also a registered inspector. Ofsted wrote to the local authority inspector to ask for a response to those allegations. When that response was received Ofsted concluded that it was not possible to come to an authoritative view of events and no action was taken against the local authority inspector concerned.
Elaine Rassaby agreed that it was proper and necessary for Ofsted to investigate this counter allegation. She stated that the language in which those representations were sought, which included HMCI'S view—that if the events took place as alleged it would represent an unacceptable intrusion—was "unwarranted and implicitly threatening". Ofsted accepted her adjudication; an apology has been offered; and internal procedures were modified.
I believe that all this shows that both the complaints were fully investigated, and that not only were the complaints about Ofsted's handling fully investigated by Elaine Rassaby, but that investigation had an evident effect: Ofsted accepted that mistakes had been made; apologies have been offered and practices amended.
We are being asked to investigate that handling again. Indeed, the local education authority has sought to have an investigation carried out by the Select Committee, as the noble Baroness, Lady Blatch, said, by the Parliamentary Commissioner for Administration as well as by the Government.
At this point we come to the wider issues raised about the accountability of Ofsted and why the Secretary of State in particular cannot be called upon to investigate its activities, which, after all, are those of a separate government department. As my noble friend said, the status and accountability of Ofsted are central to this evening's debate. It is vital that Ofsted is able to do the job that we all want it to do: inspecting, reporting and providing expert advice underpinned by the evidence of inspections. It is also vital that Ofsted has the confidence of those it serves and is properly accountable to them.
I say to the noble Baroness, Lady Walmsley, that the LEA has a vital role in supporting the work of schools and raising standards. It is for the LEA and the Standards and Effectiveness Unit in the DfEE to follow up what the inspectors say, not for the inspectors to follow up and inspect their own advice. It is a long-standing and fundamental principle that school inspectors have independence in matters of professional judgment. They need to be able to speak out openly and honestly about the strengths and weaknesses which are identified through inspections.
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Inspectors have a responsibility to act in the wider public interest, and that is reflected in the title of Her Majesty's Inspectors. The principle of independence is widely recognised as essential for school inspectors and, therefore, underpins the status of Ofsted.
When Ofsted was set up in 1992, this House felt strongly that it must be allowed the maximum independence and not be in danger of being seen as the poodle of the government of the day, of whatever complexion. I took part in those discussions in 1992. I believed then that it was right, and it is right now. Ofsted was to secure its independence and be made a government department in its own right, headed by Her Majesty's Chief Inspector of Schools for England. The chief inspector is both head of a government department and a statutory office-holder who is neither a member nor a servant of the Government. His role is, and must be, distinct from those of Ministers and civil servants, and the mechanisms by which he is accountable reflect that.
The chief inspector is appointed by Her Majesty by Order in Council and can be dismissed only by Her Majesty on grounds of incapacity or misconduct. In response to my noble friend, it is not true that the chief inspector is not accountable to anyone. He is directly accountable to Parliament for the management of his department and the public funds which are allocated to it. In practice, that accountability operates principally through the Education and Employment Select Committee which has taken a close interest in Ofsted's work.
The issues of status and accountability were explored by the Select Committee during its detailed inquiry into the work of Ofsted in 1998–99. The committee published its report in June 1999 and the Government considered its conclusions very carefully before responding to them. We believed then, and we continue to believe, that the chief inspector's role as non-ministerial head of department gives him the status and accountability required, and we have no plans to change that.
I believe my noble friend is aware that Durham LEA has written to the Select Committee about the issue. The Select Committee has the power to consider it and to ask questions about it. These and other matters could be discussed when the chief inspector appears before the Select Committee on 1st November. The complainant has also written to the ombudsman. However, as noble Lords have said, because the complaint was made in the name of the local authority the ombudsman has no powers to investigate it. I confirm that he can act only on complaints from individuals. I am sure your Lordships accept that it would not be appropriate for the head of one department to investigate complaints about the work of another. It would not be appropriate for the Secretary of State to investigate complaints about Ofsted. It is for each department to have robust and transparent procedures.
Ofsted's complaints procedures reflect its statutory role to oversee the contracted-out school inspection system and ensure that the work of inspectors is of the

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necessary high quality. It falls to Ofsted to consider complaints arising from school inspections and to identify and take appropriate action. Complaints can lead Ofsted to monitor an inspector's performance, require him to undertake training or, in extreme cases, it may result in the withdrawal of his registration.
Ofsted's complaints procedures were reviewed and strengthened in 1998, taking account of the Cabinet Office's guidance about effective complaints-handling in public sector organisations. The most significant change was the appointment of an external complaints adjudicator. Elaine Rassaby took up that post in July 1998. Her role is to provide an impartial view—I stress that—where a complainant is dissatisfied with Ofsted's handling of that complaint or the conclusions reached by Ofsted. She reviews the handling of complaints and, where possible, seeks to broker agreements between Ofsted and complainants. She also advises Ofsted about how its handling of complaints might be improved. As we have already seen, she was very active in the case before us this evening.
On the evidence before us, I believe that the case that we are being asked to investigate has already been investigated very thoroughly and with a useful outcome. I do not believe that it casts doubt on the procedures in place or the accountability of Ofsted and the chief inspector. I believe that the independence established in 1992 remains appropriate and necessary. At the same time, we have had a good, open debate on an important issue, for which I thank my noble friend. I hope that we can move on and that the file on this particular complaint can now be closed.
Lord Bach: My Lords, I beg to move that the House do now adjourn during pleasure until 8.18 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.7 to 8.18 p.m.]

Freedom of Information Bill
Lord Falconer of Thoroton Lord Falconer of Thoroton My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES
(Viscount Oxfuird) in the Chair.]
Clause 36 [Health and safety]:
[Amendment No. 204 not moved.]
Clause 36 agreed to.
Clause 37 [Environmental information]:
[Amendment No. 205 not moved.]
On Question, Whether Clause 37 shall stand part of the Bill?
Lord Lucas: I gave notice of my intention to oppose the Motion that this clause should stand part of the Bill in order to give the Government an opportunity to enlarge on how this mechanism will work. It is a pity that this clause has to be included in the Bill at all; it has been put in place only because the Government have moved so far back from what they said they would do on freedom of information that they have been forced to leave isolated this one commitment. They must be open about environmental information and they cannot shrink away from that. Here we see a small example of what all noble Lords would wish had been repeated throughout the Bill. It serves as a memento to preserve the failures of nerve suffered by the Government on the whole question of freedom of information. That is a sorry position.
I am concerned that we may inadvertently reduce, to a certain extent, the rights of the citizen. Parts of the Bill provide for rights of review by the information commissioner as regards the speed at which information should be released. I should be grateful for some comfort from the Minister in the form of a reassurance that what will happen will in every way be an advance on what is set out in the Bill. Furthermore, I seek a reassurance that no inquirer will be faced with a situation in which, because Clause 37 is in place, he might lose some of his rights under the Bill because those rights are not duplicated in the secondary legislation to be introduced in a later provision.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): It will come as no great surprise to the noble Lord that I cannot accept his analysis. Both in opposition and in government, my party has built up an enviable record as regards its efforts to ensure that citizens have fair, reasonable and proper access to environmental information. In Government, we are committed to implementing the United Kingdom's international obligations under the EU directive on environmental information and in particular the Aarhus Convention.
This will be done through regulations to be made under Clause 73 rather than directly through the general provisions of the Bill. The Bill will continue to have an effect because even if information need not be disclosed under the regulations, its disclosure may still be required under the public interest test. Copies of the consultation paper entitled Proposals for a Revised Public Access to Environmental Information Regime were placed in the Library of your Lordships' House on the 10th of this month. Those proposals inform our discussions and debates.
Clause 37 is an essential component of what we regard as sensible arrangements which will ensure that the public has proper access to information about environmental issues and that we continue to observe our international responsibilities. The exemption of such information from the freedom of information requirements under Clause 37 will prevent any confusion as to the intended relationship between the

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rules governing access to environmental information and the FOI regime. Perhaps I may stress that the exemption provided for by Clause 37 would not result in environmental information being withheld. Let me also reassure noble Lords that any fees charged under those regulations will be made subject to the test of reasonableness and will have to be made known in advance.
I hope that we shall not need to conduct a lengthy discussion on this matter. I believe that our reputation and standing on this issue is well known, well established and strong. I hope that the noble Lord will see that our approach here is reasonable. I trust that he has now had an opportunity to look at the consultation paper which, as I said earlier, has been placed in the Library of the House.
Lord Cope of Berkeley: However that may be, we were told that the Government initially proposed to incorporate these regulations into the Bill but that they came to realise that the Bill was so weak that that would not comply with either the EU directive or the convention. That is why they have had to rely still on the regulations. The Minister may be right so far as concerns environmental information, but that is because of the regulations. That tells us a lot about the rest of the Bill.
Clause 37 agreed to.
Clause 38 [Personal information]:
The Earl of Northesk The Earl of Northesk moved Amendment No. 206:
Page 21, line 39, leave out paragraph (a) and insert—
("(a) that the disclosure of information to a person would be likely to result in a public authority breaching its obligations to respect the private life of another person as set out in Article 8 of Part I of Schedule 1 to the Human Rights Act 1998, and").
The noble Earl said: Our purpose here is simple. Clause 38 is concerned with personal information. Accordingly, there is an argument for suggesting that the current drafting of the Bill, with its reference to the data protection principles, should be replaced with a reference to the underlying—and maybe more important—need to protect the right to privacy. This is what the amendment seeks to do.
There are some subsidiary arguments. We are often told by the Government, in terms, that the Human Rights Act is the most important and most significant constitutional advance that has been achieved in the current Parliament. Equally, it is reasonable to suggest that the data protection principles were derived substantially from the ECHR. Therefore there should be a presumption that the Human Rights Act has some measure of primacy over the data protection principles. In effect, it could be interpreted as being the appropriate source, if not statutory authority, for the application and interpretation of the terms of Clause 38.
Indeed, by using Article 8 of Schedule 1 to the Human Rights Act attention in Clause 38 might be much more properly focused on the necessity to protect personal information about someone's private life rather than broader issues such as the identities of
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public officials which, I understand, under the terms of the Data Protection Act, qualify as "personal data". Hence the amendment. I beg to move.
Lord Lucas: My Lords, I speak to Amendment No. 208 in this group, which stands in my name. The amendment seeks to ensure that where the exemption applied the public authority would have a duty to ask the person with the ability to release that personal information whether they were prepared to do so.
The most recent example I can give is a Written Question in which I asked the Department of Health whether a particular sufferer from BSE had "met met" or "met val" at codon 129 of her prion gene. The Department of Health said that it could not answer that question because it was seeking personal information. I asked the department to ask the person whose personal information it was whether she was prepared to release the information. I had been talking to the person who had the authority to release the information and knew that she was prepared to release it, but the Department of Health said that it would not ask her; it refused to ask for the information. Had the department asked for the information, it would have been available and the department would have been able to tell me.
I was aware of the information, but I was interested in the reaction of the Department of Health. This particular patient is "met val" and not "met met" like every other BSE patient who has been announced to date. By its refusal to ask for permission to release the information, the department has avoided answering my quite reasonable questions about what are the consequences of this turn of events; what are the different characteristics of the disease in someone with this different genetic make up; and what else will doctors be instructed to look for in terms of the symptoms of this disease.
It seemed to me a reasonable question to ask and a reasonable question to answer. The Department of Health is hiding behind a refusal to ask the person who has the information whether they are prepared to release it. I am sure that the Department of Health has the information, too, but it is pretending that it does not have it or that it cannot release it.
This is a highly undesirable state of affairs. I do not at all approve of the idea that in every case the public authority should have to ask the possessor of the personal information for the right to release it—in most cases it will be quite clearly private and the person should not be troubled—but there are times when a public authority should not be able to hide behind this. Where the personal information is crucial to public affairs, the public authority should have a duty to ask. That is the purpose of the amendment.
8.30 p.m.
Lord Falconer of Thoroton: Dealing first with Amendment No. 206, as the noble Earl, Lord Northesk, acknowledges, the United Kingdom has to implement the European Community directive in relation to personal information. Equally, that

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directive is of itself required to be consistent with Article 8 of the European Convention on Human Rights which the noble Earl's amendment refers to. A simple requirement such as Amendment No. 206 proposes is unlikely to achieve exactly the same results; namely, compliance with the EU directive. In any event, public authorities have been required to comply with Article 8 by virtue of the Human Rights Act 1998 from 2nd October 2000.
As a result I can see no benefit to the citizen resulting from the amendment proposed by the noble Earl, Lord Northesk. Conversely, it would call into question the UK's implementation of the directive and may lead to claims that we are in breach of our EU obligations. I am sure that is not a result that the noble Earl intended. Therefore, I see no benefit from the amendment and I see, to some extent, harm. I urge the noble Lord to withdraw the amendment.
Amendment No. 208, moved by the noble Lord, Lord Lucas, is drafted to apply to information which is exempt by virtue of either subsections (1) or (2) of Clause 38. I am not clear that the amendment would have any effect in respect of information exempt under subsection (1), and I believe that it could have only limited application in respect of information exempt by virtue of subsection (2).
Where a data subject makes a request for information which is personal to him, that request falls within the limits of subsection (1). The information is exempted from the application of freedom of information, and the applicant effectively pursues his claim to the information under the provisions of the Data Protection Act. In the case of such an application, the question of asking the applicant's permission to release information about himself is clearly a nonsense. So the question does not arise in relation to the Clause 38(1) exemption.
Clause 38(2) deals with personal information relating to someone other than the applicant. So it would cover the example given by the noble Lord. Exemption from the duty to disclose information follows from certain conditions being met. Those conditions are set out in subsections (3) or (4). Although the amendment purports to bite on an exemption under Clause 38(2) regardless of the grounds of that exemption, in practice this would not be the case.
The amendment is only likely to have any relevance to information where a Clause 38(2) exemption falls to be considered by virtue of the conditions set out in subsections (3)(a)(i) or (3)(b). This condition relates to a request for disclosure of personal information by a third party where such disclosure would contravene the data protection principles in the Data Protection Act 1998.
What would such a duty actually amount to? The amendment proposes that there should be a duty to consider asking permission of the data subject to disclose relevant information, but not a duty to consult. Such a duty is so vague as to be effectively unenforceable. The Government believe that it is right
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that public authorities should, in appropriate circumstances, be encouraged to consider consulting a third party where to do so might result in the disclosure of information which would otherwise be exempt. But we do not believe that it is appropriate to place on authorities a statutory duty to do so. Instead, we have set out the requirement as a provision within the Secretary of State's code of practice, to be made under Clause 44. The code of practice is currently in draft form.
I should also like to add that as a result of the Government's amendments a public authority is required to disclose the information, notwithstanding a Section 10 Notice, if the public interest requires that. I suggest that this is a more appropriate way to deal with this issue than the broad and, I think, undeliverable duty which the noble Lord's amendment proposes.
In the light of that explanation, I hope the noble Earl feels able to withdraw his amendment.
The Earl of Northesk: I am grateful for the explanation of the noble and learned Lord. I hear what he says. With the customary reservations, I am content to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 207 and 208 not moved.]
Clause 38 agreed to.
Clause 39 [Information provided in confidence]:
Lord Goodhart Lord Goodhart moved Amendment No. 209:
Page 22, line 41, after ("authority),") insert—
("(aa) before obtaining it the authority, in accordance with subsection (1A), gave notice in writing to the person from which it was obtained, that it was willing to receive it in confidence,").
The noble Lord said: In speaking to the amendment, I shall speak also to Amendment No. 211, standing in my name and in the name of my noble friend Lord Lester of Herne Hill. These amendments are amendments of some importance. What we are concerned with here, and what we wish by our amendments to try to rule out, is in the first place, and perhaps most importantly, what I might call collusive confidentiality; namely, where information is provided from a public authority in confidence, not because there is a genuine need for confidentiality but because it suits both the supplier of the information and the public authority to treat that information as confidential and therefore prevent it from getting into the public domain.
We are also concerned about what I might call unnecessary confidentiality. That is confidentiality which is not collusive, but which is allowed by the public authority simply on the grounds that, for example, that is the way things always have been done. That information has in the past been accepted on a confidential basis and the public authority has not considered, in the light of the Bill when it becomes an Act, whether that confidentiality is really necessary.
One of the problems is that Clause 39 is one of those absolute exemptions. It is therefore not possible to rely on any balancing exercise under Clause 2 in order to extract that information from the public authority that holds it and puts it into the public domain. Therefore, confidentiality has to be looked at with particular care.
The draft code under Clause 44 gives some fairly useful guidance about contractual terms requiring confidentiality. Paragraph 24 states:
"When entering into contracts public authorities should refuse to include contractual terms which purport to restrict the disclosure of information held by the authority and relating to the contract beyond the restrictions permitted by the Act. In particular, when entering into contracts, as when receiving information from third parties more generally, public authorities should not agree to hold information 'in confidence' which is not in fact confidential in nature".
That is expanded on in paragraphs 25 and 26. Paragraph 26 states:
"Any acceptance of such confidentiality provisions must be for good reasons and capable of being justified to the Commissioner".
So far as it goes, that is fairly good. But the code says very little about information which is supplied on a non-contractual basis. There is the one sentence I have already read in paragraph 24 which states:
"In particular, when entering into contracts, as when receiving information from third parties more generally, public authorities should not agree to hold information 'in confidence'."
But that is in a paragraph which deals substantially with contractual terms. It is under a cross-heading, "Freedom of Information and Public Sector Contracts". That is not in any way marked up and brought to the attention of a public authority. Certainly, the code needs to be strengthened considerably so that there is a separate paragraph under a separate or changed cross-heading which draws the attention of a public authority to the importance of excluding unnecessary confidentiality, not only in cases of contracts but outside contracts altogether. That is where the possibility of abuse exists in a non-contractual situation. Therefore, the situation could be improved by enlarging the guidance on non-contractual confidentiality—making it much plainer, stronger and clearer. However, the code is not itself law. In a case that is taken to judicial review, it may have some relevance in deciding whether a public authority has acted properly, but it is not directly enforceable. The exclusion of unnecessary confidentiality should be dealt with on the face of the Bill. Our amendments would require a public authority to give notice in writing to a potential supplier of information that it was willing to receive it in confidence. The supplier of the information would have to say, "We want you to take this information in confidence". The public authority would then have to consider whether it was willing to receive it in confidence; and it could not do so, under our Amendment No. 211, unless it either required that information in order to discharge its functions properly or it believed on reasonable grounds that the information would not be supplied to it unless it gave that notice.
We believe that our amendments would cover what we see as a serious gap in the Bill which, as it now stands, is not nearly strong enough in preventing collusive or unnecessary confidentiality blocking access to information that ought properly to be made public. I beg to move.
Lord Lucas: I have a number of amendments in this group. I shall leave it to the Minister to reply to them. Their meaning is fairly straightforward. If he is able to satisfy me that they are not required, the Committee will be spared my explanation of why I think they are required, which will then have been rendered unnecessary.
Lord Archer of Sandwell: I am grateful to the noble Lord for giving way. I appreciate that my noble and learned friend cannot win. I lectured him in a previous debate for replying to arguments before he had heard them.
Lord Lucas: Unbeknown to the noble and learned Lord, Lord Archer, the noble and learned Lord, Lord Falconer, has already heard my arguments on these matters.
Perhaps I may raise one other subject in passing. At an earlier stage we discussed the way in which Clause 39 is an absolute exemption. It was then apparent that the Government wished not to have the public interest test that we have in the Bill but to have the rather weaker one of the law of confidence applying in this matter. That would not allow an applicant access to the information commissioner in relation to that determination of public interest. He would have to go expensively to the courts. I do not find that particularly comforting.
I should be grateful if the noble and learned Lord could at least enlighten me on the meaning of the word "actionable" in Clause 39(1)(b). I am not clear at what point a breach of confidence is "actionable". Does it mean that I have the ability to go to a lawyer and have a writ taken out, or does it mean that I have to have good grounds for taking out that writ that would succeed in court? I should be grateful for advice on that point so that I know exactly what scope we are looking at for this exemption.
Lord Williamson of Horton: Throughout this and earlier discussions I have been trying not to be too legalistic but to think a little about the actual operation of the Bill when it becomes an Act. I want to make one comment relating to the amendment tabled by the noble Lord, Lord Lucas. He came back again with the point that in relation to Clause 39 the public authority should consider whether the originator of the information should be asked for permission to release that information. We are talking here about information which passes from one public authority to another. Under the Bill, "public authority" is extremely widely defined. Schedule 1 is a list of public authorities. It includes the Wine Standards Board of the Vintners' Company and other authorities which pass information.

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The practical position is that many documents are classified "In Confidence" at some stage. It is extremely common in the public service to classify documents as "In Confidence". Shortly afterwards, that classification becomes rather ridiculous. Many senior managers in public service spend a good deal of time telling people to go through the documents and strike off "In Confidence" or "Confidential" because it becomes totally irrelevant with the passage of time. I have done it many times in my own life. If the public authority leaves documents as they are and does not consider whether the "In Confidence" is still relevant, we shall have the unnecessary exclusion of information from the public domain.
By one means or another we should ensure that there is proper consideration of whether a classification of "In Confidence" or "Confidential" is relevant at the time a document is requested. In very many cases it will not be relevant. We need to ensure that the classification is properly reviewed.
8.45 p.m.
Lord Norton of Louth: Perhaps I may add a few words in support of Amendment No. 211. It is an important amendment. The clause as drafted works against the intent of the Bill, as argued by the noble and learned Lord the Minister. The Minister has stressed on a number of occasions that he wants the Bill to achieve a culture shift—to move the emphasis from secrecy to openness. The clause militates against that. It constitutes a gift to those who want to circumvent the purpose of the Bill. I shall explain what I mean.
As the noble Lord, Lord Goodhart, said, third parties may not want the material they supply to be made public. Officials in the authority who believe that information is power may not want to reveal that information. The authority thus agrees to receive the information in confidence. It is therefore a closed relationship. Nothing in the Bill permits that closed relationship to be prised open. It may be prised open under common law in exceptional circumstances, but they are exceptional. That is the present position. Nothing in the Bill takes us beyond that. For those officials who want to resist the culture shift favoured by the Minister—the very people the Minister wants to get at when he talks about the culture shift—the clause is something of a godsend. If the Minister wants to achieve a culture change, I urge him to give serious consideration to the amendment moved by the noble Lord, Lord Goodhart.
Lord Falconer of Thoroton: Public authorities should not be placed in the position of having to choose between failure in relation to the statutory duties under the Bill and giving rise to an action in common law breach of confidence. The speeches of the noble Lords, Lord Norton and Lord Williamson, revealed to some extent something of an over-suspicious misunderstanding of what the effect of the clause means. Simply to put at the top of a document "Confidential" does not make the disclosure of that
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document by anyone actionable in breach of confidence. "Actionable" means that one can go to court and vindicate a right in confidence in relation to that document or information. It means being able to go to court and win.
On the question of confidence, one could be given a document or information in confidence. As time went by, it could cease to be confidential; for example, because the information was published elsewhere. The issue has to be tested at the point the application is made under the Freedom of Information Act. There is a two-pronged test in Clause 39; first, the information has to be obtained in confidence by the public authority; and, secondly, its disclosure would give rise to an actionable breach of confidence by the public authority. So the information must be confidential from the start and it must still be an actionable breach of confidence to disclose it at the time the application is made under the terms of the Bill.
The scope of the exemption is necessary because the Bill covers a wide range of public sector bodies, from primary schools to government departments. There are many reasons why information may be passed in confidence from one authority to another. It may even be that the duty of confidence arose when information was passed from a private sector body to an authority covered by the Bill. Any subsequent communication of the information between public authorities should maintain this duty of confidence.
The application of the exemption is restricted. Clause 79 prevents a government department from claiming for the purposes of Clause 39(1)(b) that disclosure of any information by it would constitute a breach of confidence actionable by any other government department. This means that information passed between government departments does not fall within the exemption unless the duty of confidence is owed to another person or body.
Clause 39 applies only to information the disclosure of which would give rise to an action for a breach of the common law of confidence. Amending subsection (1)(b), as the noble Lord proposes in Amendment No. 210 would effectively give greater protection to information passed from, say, a commercial firm to a public authority than would be accorded to information passed from one public authority to another. This seems to be an unjust differentiation which we could not support. Private persons, commercial firms and indeed public authorities are entitled to expect that information that they pass to a public authority in confidence will be treated as such.
Amendments Nos. 209 and 211 impose various limitations on the duty of confidence on the recipient public authority. I assume that the noble Lord's intention is to prevent public authorities from using the term "confidential" as a blanket to prevent the release of information. I believe these amendments to be unworkable, but also unnecessary. While this exemption does not come within the public interest test, it is subject to other legal safeguards. As I have mentioned, information would come within the remit of this exemption only if its disclosure would mean a breach of the common law.

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Third parties can and do freely and proactively pass to public authorities information the disclosure of which would constitute a breach of confidence. Where such information is passed to the public authority without the authority's prior knowledge, the authority could not give such notice as would be required under the noble Lord's amendment. This would leave the authority in the untenable position that, if it received a request for this information, it would have to choose between failing in its statutory duties and being held liable at common law for a breach of confidence.
Amendment No. 230 is inappropriate. In those exemptions which contain elements of confidentiality—that is, Clauses 25(2) and (3), Clause 39 and Clause 40—the amendment sets out an unnecessarily bureaucratic procedure for determining whether or not confidentiality applies. In many cases the circumstances surrounding the communication of information will already make it perfectly plain that it is to be held in confidence, without the need for further instruction in writing.
The noble Lord's amendment also misunderstands Clause 40, which covers communications to a public authority by its lawyers and by other persons for the purposes of litigation. In such an instance, the public authority will often not be the originator of the information. However, the legal professional privilege in question is that belonging to the public authority. To limit the authority's ability to rely on its privilege to circumstances where a third party beyond its control has marked information as "confidential", misses the point of legal professional privilege; it would in effect undermine the rights which the doctrine accords to public authorities, while leaving intact those rights for all other legal persons.
This amendment inappropriately applies to Clause 41. This exemption is intended to exempt information which has not been passed in confidence but whose disclosure would be prejudicial to the commercial interests of any person, including those of the public authority itself. The amendment would exclude this sort of information from the scope of Clause 41—and thus force public authorities to disclose trade secrets, unless the provisions of the proposed new clause had been complied with.
Amendment No. 232 is not needed. Nothing in the Bill disturbs the obligations of public authorities under the common law duty of confidentiality and it is this which authorities will have to consider, rather than the Secretary of State's code of practice, in determining whether or not the authority is under an obligation of confidentiality.
The noble Lord, Lord Lucas, says that the effect of Clause 39 is that the applicant must go to court in order to establish his reliance on the clause. That is not right. The commissioner can assess whether Clause 39 applies. She can assess whether the information is in fact held in confidence.
The noble Lord referred en passant to the fact that this is a weaker public interest test under the law of confidence than the Clause 2 test. I do not know what he meant by that. He will need to explain his argument before l can deal with it.
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The noble Lord, Lord Goodhart, referred to the code of practice. The code is a draft document. It is work in progress. I very much welcome comments from the noble Lord and others on how it could be strengthened or changed. It will be discussed with the commissioner in due course. However, we remain of the opinion that the question of confidence is best dealt with in a code where flexibility of approach can be maintained, rather than on the face of the Bill. I invite the noble Lord to withdraw his amendment.
Lord Goodhart: I draw a little comfort, but not very much, from the Minister's remarks about the code. I was hoping for something stronger. I hoped he would say at least that the Government would look favourably on extending the guidance given in relation to confidentiality. However, I shall have to make do as best I can with what he said.
I found some difficulty in following the noble and learned Lord's argument on the effect of Clause 39. It seems to me that if a third party supplies information to a public authority and stamps it "confidential", that cannot in itself impose a duty of confidentiality on the public authority. Confidentiality involves a certain degree of consensus between the two parties. We are concerned with the case where a public authority indicates its willingness to accept information that is treated as confidential where the circumstances do not justify that. Nothing in the Minister's response dealt with that problem. Therefore, we may want to re-examine the matter.
Lord Lucas: Before the noble Lord ends this discussion, perhaps I may take the chance to come back to the noble and learned Lord, Lord Falconer, on the point about relative levels of confidentiality. I am relying, as so often, on a briefing from the Campaign for Freedom of Information. It states that the test under Clause 39,
"is likely to be more restrictive than the bill's public interest test. The courts have held that an obligation of confidentiality may be set aside (or in some cases may not have arisen at all) where the information reveals the existence of crime, fraud, serious misconduct, danger to the public or other matters of such importance that 'it may fairly be regarded as vital in the public interest that a person possessing such information should be free to disclose it to an appropriate third party'".
This is a narrower public interest test than that contained in the Bill, which seems likely to give more weight to including information to which the public's right of access would apply. I am always willing to accept the noble and learned Lord's view on the law. However, it seems to me that, on that interpretation, we are looking at a rather narrower right of public interest under this clause.
I should also be grateful if the noble and learned Lord would translate from the wording of Clause 39(1)(b) to the question that the official who will decide this question will actually have to ask himself. Will he have to ask himself: "Looking at all the circumstances, do I believe we should lose a case if one were brought?"; or will he have to ask: "If I disclose this information, is there a likelihood that I shall he sued, or a possibility that I shall lose?". How will he

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phrase the test? How will the information commissioner judge whether he has taken the right decision? Presumably, the information commissioner cannot put herself in the place of the court and decide the question. The question must be phrased from the point of view of the public authority. Am I likely to lose? Am I certain to lose? What will the question be?
9 p.m.
Lord Falconer of Thoroton: First, the question will be: do we hold this information in confidence? It will not be, "Is this marked in confidence?", because that is not the test. The test is: "Would I genuinely be breaking someone's confidence by disclosing this information not at the time that the information was received but now?" If it is something which is held in confidence from someone else, is there nevertheless a public interest in disclosing it because the public interest requires that the public know it? That is the question that the official or the public authority asks.
If under the Freedom of Information Act the applicant complains that there has been no disclosure under Clause 39, that is the question which the information commissioner asks. We should not be distracted by the fact that the test being applied is a common law test. That does not mean that the information commissioner is not capable of balancing those two interests.
Lord Goodhart: I am a little puzzled by that reply because, as the noble Lord, Lord Lucas, said, the test for removing confidentiality in court is one of serious misbehaviour; that is, there is a vital public interest. It usually states that there is no confidentiality to protect iniquity. I believe that "iniquity" is the word that is used in most cases. That, of course, is fairly narrow. I hope that there are not too many cases where the behaviour is iniquitous.
Here, we are considering the withholding of information which it would be tiresome or inconvenient for the public authority to disclose. Given that, where information is accepted on the footing that the receiver of the information will treat it as confidential or that the disclosure of information will give rise to an action for breach of confidence, we feel that the test imposed by Clause 39 is too narrow. It may be correct in itself but it comes too late in the whole game. One wants to ensure that the public authority does not accept information on a confidential basis where it is not properly justified in doing so.
Perhaps I may continue from the point that I was about to reach when the noble Lord, Lord Lucas, intervened. On this occasion, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 210 to 212 not moved.]
Clause 39 agreed to.
Clause 40 [Legal professional privilege]:
[Amendment No. 213 not moved.]
Clause 40 agreed to.
Clause 41 [Commercial interests]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 214:
Page 23, line 8, at end insert ("and there is no overriding public interest in complying with the request for information").
The noble Lord said: In moving Amendment No. 214, I wish to speak also to Amendments Nos. 215, 217 to 222 and 325. We have now moved on to Clause 41, which is concerned specifically with commercial interests. We brushed against that subject a few moments ago, but this is the substantive clause and these are the substantive amendments which deal with it.
The first oddity about Clause 41 is that there are two separate tests in subsections (1) and (2). Subsection (1) states that:
"Information is exempt … if it constitutes a trade secret",
but it does not define "trade secret". Subsection (2) separately exempts information,
"if its disclosure … would be likely to, prejudice the commercial interests of any person (including the public authority holding it)".
I am not quite sure how the definition of "trade secret" differs from the definition given in subsection (2). However, particularly in Amendment No. 215, we have attempted to define a trade secret so as to narrow that down. I believe that that is desirable.
There is also the question of whether a trade secret, simply because it is a trade secret or one defined as such in subsection (2), should automatically be exempt in all circumstances. Amendment No. 219 and, for that matter, Amendment No. 214—and other amendments have been suggested by other people—attempt to insert that where the public interest in complying with the request for the information exceeds the harm that would result from releasing it, the information is not exempt. In different ways, we are attempting to provide that the public interest may still permit the release of what would otherwise be a trade secret or a matter that was commercially confidential.
Amendment No. 222 looks at the question of retrospection by saying that information is exempt if it was supplied to the public authority by a company or a commercial organisation before the coming into force of this Act. I believe that retrospection is always difficult. Business requires stability and it is important that business should be able to rely on the laws as they stand—in this case, at the time when the information is given to the public authority—and should not find retrospectively that something they were told falls under this legislation.
Amendment No. 325 concerns information which might last for ever. Some trade secrets remain valuable for a very long time, particularly when they concern matters such as patents or items which cannot be patented but on which businesses rely for making sales. This amendment attempts to ensure that such information is not automatically released after 30 years under Part VI of the Bill as otherwise it would be. The City of London in particular is often criticised for short-termism. However, sometimes there is long-term commercial interest in information. We are attempting

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to allow that protection to continue for longer and for it not to be subject automatically to the override of the later clauses in the Bill. Therefore, I beg to move Amendment No. 214.
Lord Archer of Sandwell: I congratulate the noble Lord, Lord Cope, or perhaps it should be his noble friend Lord Mackay, on his skill in drafting this amendment. It says broadly the same thing as mine but he drafted it so that it came first in the text and therefore opens the bowling. I should like to speak to my Amendment No. 218 and, since the noble Lord deployed the case, it will not benefit from repetition.
However, I invite my noble and learned friend to consider a hypothetical situation. Suppose a public authority is told that a specific retailer is selling foodstuffs which are toxic, and it ascertains that that is true. Clearly to reveal that would prejudice the commercial interests of the retailer. The Bill would not preclude the authority from making it known if it chose, but if someone were to ask the authority whether or not the retailer was selling toxic goods, we might have hoped that it would be under an obligation to disclose the answer.
It is not unknown in the experience of most of us for an authority or a government which is aware of a danger to decide that it would be better to keep the public in ignorance, so as not to create alarm, for example, or not to damage our export trade. Members of the public will not know about the information until they complain about the epidemic. I assume the philosophy of the Bill is that information of that kind ought to be made known to the public. Would it not be wise to ensure, therefore, that danger to a commercial interest is not the only consideration to be taken into account?
Lord Goodhart: We tabled Amendment No. 221, which comes within this group. It is fair to say that we are not particularly concerned about Clause 41(1)—the definition of "trade secret" is fairly widely recognised in existing law. But we are concerned about the width of Clause 41(2). While we accept that this is not an absolute exemption and therefore the balancing test under subsection (2) has to be applied to it, the present width of Clause 41(2) is a serious problem.
Our solution—it is certainly not the only possible solution—is that there should be in the clause something equivalent to what was Clause 13(5) and which we have been assured will be brought back; that is, that the authorities must have particular regard to the public interest in the effective oversight of public funds; in making sure that the public are adequately informed about risks to health and safety or risks to the environment; and that regulators are discharging their responsibilities effectively. We believe that the public interest element in Clause 41 needs strengthening considerably and that our amendment is the appropriate, if not the only appropriate, way of doing it.
Lord Young of Dartington: I wish to speak to Amendment No. 220, tabled in my name. I say
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immediately that I am very much in favour of the proposals made by those noble Lords who spoke before me on other amendments in this group.
After saying that, I join with my noble and learned friend Lord Archer of Sandwell in paying tribute to the Freedom of Information Campaign, Maurice Frankel and the two co-chairmen in particular for their great persistence over many years and their willingness to come back after the series of disappointments which they endured.
Looking back over the period at which the campaign has been at work, two things seem to be at odds. One is that the public realm is becoming more accessible to those members of the public who are interested. That is because of the growing reach of the media; because of often invasive journalism: because of the—almost— respectability which whistleblowers are receiving and the leaks that are becoming endemic on almost every subject that the Government touch—at least when there is any suggestion of any scandal or misdoing.
The public may get a strange, misinformed and biased view of what is going on in various parts of the government but they get a view. The kind of view they get does little to favour the esteem in which governments are held. The Consumers' Association recently conducted a survey into the public's confidence in Ministers. It showed that the majority of people did not have great confidence in them and that that lack of confidence is probably growing.
On the other side of the coin has been the Government's long-term resistance to letting the public know what is going on behind closed doors. That may have excited the media to try to discover many things, some of which are inaccurate, in order to satisfy an appetite. It seems to me that if only there were more openness—more than is shown in the Bill—the Government would not be so greatly affected by the media slights which are such a pain to Ministers and others in many ways.
The provision is crucial from the point of view of consumer interests. As I said at an earlier stage of the Bill, I was founder and I am now president of the Consumers' Association. It has been a major funder of the freedom of information campaign and is proud to be. If that means that I should declare an interest, I certainly do. The association has been foiled on so many issues in its attempt to provide information which would be of interest to consumers in trying to make a balanced decision about a particular issue. When the association first began, we were afraid that our chief enemies would be large companies and others which would get on our back because we were trying to give—and were generally succeeding—information about goods and services on the market.
We thought that in some way the confidentiality, secrecy and so forth would be difficult to overcome. To some extent, that has been overcome. Now our chief difficulty is trying to discover official information. Consumer confidence has been shaken by a series of scandals about BSE, GM food scares, major transport disasters, pensions mis-selling, mortgage endowments

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and large-scale price fixing in the car industry. The root cause of all those scandals may be different but they had one thing in common. By the time consumers discovered what had gone wrong, or the full extent of the damage had become clear, it was too late. Citizens in the UK have paid twice, both as taxpayers and consumers, for many decisions on the part of public authorities in refusing to disclose information and decisions which are therefore made behind closed doors. In our view, that has become the single most important consumer issue before Parliament.
As there is no adequate freedom of information, we have had to consider what we can do within the existing law. I should like to give as an example the so-called "orphan assets". Earlier this week, the Consumers' Association filed a pre-emptive cost order to try to give it the right to tackle a leading French insurer, AXA. It is one of the many insurance companies which has orphan assets which, in the view of the Consumers' Association, should belong mainly to policyholders and where the decision rests partly with the Government.
There have been long-drawn-out negotiations between AXA, the Financial Services Authority and the Treasury about what to do with those orphan assets, which are very large overall when one considers all the life insurance companies; indeed, they are estimated to amount to between £20 billion and £30 billion. This is certainly a very important consumer issue. All that we could find out—we managed to get 500 AXA policyholders organised on this issue—is that the FSA said that the offer made to policyholders fell within a "reasonable range".
We have asked many times what is that "reasonable range", because it is a matter that concerns every policyholder who may be called on to vote on AXA's proposed scheme. They will want to know whether the actual figures are at the high level or the low level of the range. But, as I said, we have not been able to get anywhere. That is why we are trying to get the courts interested. However, in our view, it should not be necessary to do so: the FSA should have given this information, with the backing of the Treasury, without question.
Clause 41 would continue to make life very difficult for consumers and all those who support their interests. It is a sweeping clause that will make any disclosure exempt if it would prejudice "commercial interests". As I say, that is a very wide sweep. Commercial interests have always been cited as the main reason for non-disclosure where it affects consumers. The purpose of my amendment would be to ensure that the requirement to disclose information that helps consumers to make informed choices or serves to improve the quality of markets for the general good would override the protection given to narrow commercial interests.
We recognise, of course, that commercial interests do need protection; indeed, no one can dispute that fact. However, there is a strong case for disclosing information that allows consumers to obtain redress. It would be a great improvement if there were a
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reference to a public interest. I am not suggesting for a moment that the particular words in this amendment are necessarily the right ones, but they express a resolve on our part. It is possible that the Minister will not be able to accept all of my amendment. However, if he is able to say that he will consider the points that I have raised and perhaps return at a later stage with a form of words that would make the clause less sweeping and more favourable to consumer interests, that would alleviate a little of the misery that has been discussed in the debates on the Bill.
Lord Falconer of Thoroton: Perhaps I may deal, first, with Amendments Nos. 214, 218 and 219, which suggest that some public interest test of one sort or another should be included in Clause 41. By virtue of the new Clause 2, which was added by earlier government amendments, there is already a public interest test that applies to information exempt under Clause 41. Therefore, authorities must release such information,
"where the public interest in disclosing the information outweighs the public interest in maintaining the exemption".
The amendments are, therefore, unnecessary because the Bill already achieves their purpose, and I ask noble Lords not to move them.
Amendment No. 221 was one of the amendments proposed by the noble Lord, Lord Goodhart. He identified certain specific issues that should be addressed and weighed in the balance under Clause 13, now Clause 2. It is not clear why a framework such as that contained in his amendment is considered necessary in respect of this type of exemption but in no other. In seeking to identify interests to which the authority should have particular regard in this way, the effect would be to weight the balance of the test in a particular direction. The Government do not consider that that is appropriate. Authorities need to take account of all the circumstances of a particular case when reaching such decisions. No single interest or group of interests should be seen to predominate. I invite the noble Lord, Lord Goodhart, not to move that amendment.
I am delighted that the noble Lord, Lord Young of Dartington, has taken part in this debate. He has obviously had a much longer role than any of us on issues concerning freedom of information and consumer choice. I am delighted that he delivered such a speech and played a part in this Committee stage. Having said that, I shall begin to disappoint him with my response to his amendment.
I wholly support the intention to protect consumer choice, but the amendment is too widely drawn. Information that relates to the quality or safety of the goods or services or conditions of production or supply may include, for example, manufacturing processes by which the quality or safety of a particular product is ensured or a firm's plans for promoting a particular product where quality or safety are to figure in the promotion. The amendment states:
"conditions under which those goods or services are produced or supplied".

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That could range from manufacturing processes through to conditions in supply contracts and marketing plans. The harm test is also too wide. Factors affecting consumer choice include price, quality, the environmental impact of the product, the origin of the product, location of its point of sale, how it is marketed and a range of other criteria. The effect of this test would be to remove the protection of the exemption from any commercially sensitive information which touched on these or other factors. There is already provision in the Bill for those matters to be properly taken into account under the public interest test. In the light of the arguments, I hope that the noble Lord, Lord Young of Dartington, can be persuaded not to pursue his amendment.
I turn to Amendment No. 215, which seeks to define "trade secret". The noble Lord, Lord Goodhart has said, and he is right, that trade secret is a phrase well known to the law. It is used in a large number of statutes and cases. I do not believe that there will be any difficulty in identifying a corpus of law which would define it. "Trade secret" would not go as far as to cover everything in Clause 41(2) because "trade secret" would primarily focus on processes within a commercial organisation, whereas Clause 41(2) is wide enough to cover, for example, competitors of an organisation giving information to the Government that was critical of its processes. That would not be a trade secret, but something that could damage the body about which they were talking.
I was asked about the situation where information is given about a particular product which showed that the product was toxic in some respect, and whether that would be disclosable under the Bill. We always come back to while it might be damaging, the public interest has to be weighed in Clause 2. So I do not think that a definition of "trade secret" is appropriate.
I turn finally to Amendments Nos. 222 and 325. Amendment No. 222 would effectively introduce a new exemption into the Bill for all information that was supplied to a public authority by a company or other commercial organisation before the Bill, once enacted, came into force. This would apply to a large amount of information and would drive a coach and horses through the policy of retrospection, at least in relation to commercial information. I grant that the public interest test provisions would at least still apply to information of that sort.
However, this general approach is nonsensical because such information should already be available under the code of practice introduced by the previous government. I would therefore ask noble Lords not to press that amendment.
I do not believe that Amendment No. 325 is necessary. There are good reasons for continuing certain exemptions relating to highly sensitive information beyond the 30-year point. However, that can only be justified where there is some likelihood that the disclosure of such information could cause real harm years after it was created. The circumstances of commercial life change so rapidly that I cannot foresee any information which would have a
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prejudicial effect on a party's commercial interests after 30 years. For those reasons I invite the noble Lord not to pursue his amendment.
Amendment No. 217 has not been proposed by the noble Lord, Lord Lucas. It refers "to an unreasonable degree". I am not confident that that term would assist us. There will continue to be different interpretations of what constituted "unreasonable" and in consequence no clarity about the way in which the provision would work in practice.
9.30 p.m.
Lord Archer of Sandwell: Perhaps I may echo the tribute which my noble and learned friend paid to my noble friend Lord Young. I still have some of the books and pamphlets which he wrote when I was a student, which is a very long time ago. They are still on my shelves, occupying a place of honour.
I apologise to my noble and learned friend. I overlooked the fact that there was a public interest test in the new clause. I thought that I had checked it. Admittedly, I did so after a late night and an early morning, but I did not see it. I take on board what he says, subject to the point made yesterday by my noble friend Lady Whitaker that the test in its present form does not deal with the tie-breaker situation.
I believe that I have fathomed the secret of my noble and learned friend's success as an advocate. One has two arguments and preferably they are inconsistent and mutually exclusive. One does not use both of them on the same occasion. If the complaint is that the category is too wide, one says, "Don't bother about how you define the category, let's keep it simple. Let's subject everything to a prejudice test and do not worry about what the category says." If the complaint is that there is no prejudice test one says, "Of course, some things are so likely to cause harm that one will need categories so one has to be very careful what they are." He uses both arguments to extend the scope of information which is exempt from the Bill. However, I promise to look very carefully at the new Clause 2. It may very well be that I shall not need to trouble the noble and learned Lord further.
Lord Cope of Berkeley: I was also delighted that the noble Lord, Lord Young of Dartington, contributed to this short debate. Like the noble and learned Lord, Lord Archer, I believe that the noble Lord has given us something to think about on the points raised by these amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 215 to 219 not moved.]
Lord Young of Dartington Lord Young of Dartington had given notice of his intention to move Amendment No. 220:
Page 23, line 11, at end insert—
("( ) Information is not exempt by virtue of subsection (2) if or to the extent that—

(a) it relates to the quality or safety of the goods or services produced or supplied by the person referred to in that subsection or the conditions under which those goods or services are produced or supplied; and

427

(b) the prejudice to that person's commercial interests would result from the exercise of more informed choice by persons seeking to acquire those goods or services.").

The noble Lord said: I am most grateful to the noble and learned Lord and other noble Lords for what they said. I could not help thinking once again of the old saying that fine words butter no parsnips. If the noble and learned Lord has second thoughts about the matter, it would be sensible and greatly appreciated in wide circles if there was a re-wording of the clause. Despite the arguments that he advanced, I believe that he can see that it will not be apparent to ordinary consumers in Widnes, or wherever it may be, that there is some small protection here. There is a chance that the noble and learned Lord will be prepared to back his kind words tonight with some kind of action and that he will show some concern for the consumer interest. There is no better place in the Bill than in Clause 41. I know that the noble and learned Lord has many things on which to reflect, but I hope that he will feel able to make more than a gesture to an important interest in our society. I shall not move the amendment.
[Amendment No. 220 not moved.]
[Amendment No. 221 not moved.]
Clause 41 agreed to.
[Amendment No. 222 not moved.]
Clause 42 [Prohibitions on disclosure]:
[Amendments Nos. 223 to 225 not moved.]
Clause 42 agreed to.
Clause 43 [Power to confer additional exemptions by order]:
Lord Cope of Berkeley Lord Cope of Berkeley had given notice of his intention to move Amendment No. 226:
Page 23, line 28, leave out ("effects adverse") and insert ("substantial prejudice").
The noble Lord said: In moving Amendment No. 226, I wish to speak also to the amendments with which it is grouped.
Lord Falconer of Thoroton: This is an amendment to Clause 43, which we oppose standing part. Therefore I do not think that there is much point in moving amendments to it.
Lord Cope of Berkeley: That is fair comment. We shall await the clause stand part debate. I shall not move the amendment.
[Amendment No. 226 not moved.]
[Amendments Nos. 227 to 229 not moved.]
Clause 43 negatived.
[Amendment No. 230 not moved.]
Lord Lucas Lord Lucas moved Amendment No. 231:
After Clause 43, insert the following new clause—

Freedom of Information Bill

  RECORDS OF MINISTERIAL ENGAGEMENTS
  (" . Records of ministerial engagements can never be exempt information under sections 19, 20, 26, 27, 33, 34, 38 or 39.").
  The noble Lord said: I shall adopt my standard technique here. This is merely an opportunity for the noble and learned Lord to show yet again how determined he is that this Bill should not apply to the central activities of government. I beg to move.
  Lord Bassam of Brighton: I am afraid that the noble Lord, Lord Lucas, will have to put up with the noble and less learned Lord Bassam on this amendment.
  We take the view that it would be wrong to treat records of ministerial engagements differently from other types of information held by public authorities. This would be the effect of the blanket disclosure which Amendment No. 231 would introduce. The Bill as drafted ensures that such information will be disclosed, if it is in the public interest to do so. We believe that is the right test. The decision is, of course, reviewable by the information commissioner and she can order disclosure. I am not sure that too much would be gained by knowing how and at what time I arrive at Victoria Station in the mornings. Nevertheless the information commissioner would be obliged to disclose that information if she thought it right to do so. The Bill ensures that such information as ought to be disclosed will be disclosed. We believe that this amendment is not necessary. I therefore invite the noble Lord to withdraw it.
  I turn to the proposed new clause in Amendment No. 231A. This would remove from the scope of certain exemptions the name and address of any correspondent with a public authority, the date of the correspondence and response from that authority. Subsection (2) of the proposed new clause defines "name and address" for the purposes of the new clause.
  I am not convinced that members of the public corresponding with public authorities would be at all happy at the prospect of their names and addresses being disclosed to third parties simply by virtue of having entered into such correspondence. Nor am I clear what this would achieve; perhaps the noble Lord can enlighten us.
  There is also the question of clashing with other legislation, in particular, the Data Protection Act 1998. Under the 1998 Act, "personal data" are data which relate to a living individual who can be identified from that data. It is likely that the names and addresses of persons drawn from correspondence with public authorities will be "personal data" within the meaning of the Data Protection Act 1998. The noble Lord's amendment would almost certainly be incompatible with the directive on which that Act is based. Given that information, I trust that the noble Lord will also withdraw that amendment.
  Lord Lucas: I shall not, of course, press the amendments, but the noble Lord is saying that the

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  identity of those lobbying Ministers is something which this Government wish to continue to be able to keep secret. I understand that to be the case. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 231A not moved.]
  Clause 44 [Issue of code of practice by Secretary of State]:
  [Amendment No. 232 not moved.]
  Lord Lucas Lord Lucas moved Amendment No. 233:
  Page 24, line 38, at end insert—
  ("( ) The code may include provisions as to how public authorities shall reach decisions under particular sections or subsections of any part of this Act.").
  The noble Lord said: This amendment would allow the information commissioner to set out rules and to express opinions on how decisions under the Bill shall be reached by public authorities. I think it extremely important that the information commissioner should be able to do so. It should be part of her remit. I beg to move.
  Lord Norton of Louth: I add a word of support for my noble friend's amendment, and a provision which may be helpful in relation to the code. Having considered the amendment, the draft code and the Bill, I believe that there may be argument for providing guidance relating to the publishing of publication schemes. Under Clause 17 authorities are required to publish publication schemes. However, as I read the clause, I am not sure that publication is covered by the publication scheme. There may be a need for guidance under the code relating to the publishing of the publication scheme. It is referred to in the draft code but there is no guidance on the form of publication other than a requirement that an e-mail address should be included.
  I use my noble friend's amendment as a peg on which to hang this point. I did not give the Minister notice that I would raise the matter. I do not expect, therefore, a response today. I put the issue before the noble Lord if he wishes to consider it.
  Lord Bach: I am grateful to the noble Lord, Lord Norton of Louth, for raising a matter which I should like to consider.
  Amendment No. 233 would have the effect of allowing the code of practice to include provisions relating to how public authorities shall reach decisions under the Bill. However, we think that it would be inappropriate to place provisions about reaching decisions under the Bill in a code of practice. It may be that there has been some misunderstanding as to how this amendment would work. Subsection (2) of Clause 44 is an adjunct to subsection (1). It does not provide an exhaustive or definitive list of what is to be contained in the code of practice. We see the codes of practice as there to provide a methodology for public authorities; for example, on how to deal with inquiries or complaints. The noble Lord's amendment would
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  extend that to covering areas such as how to reach a decision concerning exemptions, a matter which we believe is correctly dealt with on the face of the Bill.
  The code is a supplement to the provisions of the Bill. It is not a substitute for legislation. The responsibility—I want to emphasise this—for ensuring that authorities apply the provisions of the Bill rests with the information commissioner and the tribunal and not with the Secretary of State. The commissioner can set rules on what she wants, but the amendment relates to what the Secretary of State must include in the code. It is the commissioner who has the power to set the rules on this.
  My initial answer to the noble Lord, Lord Norton of Louth, on publication, is that that again is a matter for the commissioner when she determines on the set of rules that she may apply. After this short debate, I hope that the noble Lord will withdraw his amendment.
  Lord Lucas: I think that the Minister misunderstands where the amendment would come in the clause. It would not be a paragraph under subsection(2) but a new subsection (3). It is a permissive "may" rather than a "must".
  The reason for bringing forward the amendment is amply illustrated by the debate I had with the noble and learned Lord, Lord Falconer, about 10 minutes ago on the test which would have to be applied by a public official considering whether information was held in confidence and should be disclosed under that brand of public interest test. The information commissioner will sit in judgment on whether the public official has done right, but will not be allowed to give the public official any guidance as to how to do right. That is an odd state of affairs. Anyone who judges whether the right procedures have been followed in deciding the public interest must set down the procedures that they expect to be followed so that a public official who seeks to take a decision under the relevant clauses can know that they have clone as they are supposed to do and that the information commissioner is likely to be happy.
  9.45 p.m.
  Lord Bach: The commissioner can provide guidance on all the matters that the noble Lord raises, including how to come to a decision.
  Lord Lucas: That answers my question. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 234 not moved.]
  Clause 44 agreed to.
  Clause 45 [Issue of code of practice by Lord Chancellor]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 235:
  Page 25, leave out lines 25 and 26 and insert—
  ("(c) in relation to Northern Ireland, the appropriate Northern Ireland Minister.").
  On Question, amendment agreed to.
  [Amendment No. 236 not moved.]
  Clause 45, as amended, agreed to.
  Clause 46 [General functions of Commissioner]:
  The Earl of Northesk The Earl of Northesk moved Amendment No. 237:
  Page 25, line 35, at beginning insert—
  ("(A1) The purpose of the Commissioner is to facilitate public access to the information held by public authorities except where disclosure of specific information is exempt under the Act.").
  The noble Earl said: Our aim is straightforward: we seek to add what amounts to a purpose clause to the section describing the role of the information commissioner. Unsurprisingly, bearing in mind previous debates, we believe that to be particularly important given the proposals to merge the positions of Data Protection Commissioner and information commissioner.
  Once the Bill is enacted, the role of the combined data protection and information commissioner will be vital. In principle, the main aim of the former incarnation was to ensure that people had access to personal information held on record. However, in practice the bulk of her work is concerned with ensuring that personal data are not misused by organisations or transferred between organisations unlawfully. In many cases, that involves ensuring that information remains secret rather than promoting openness. That is still a major contradiction at the heart of the Bill.
  We acknowledge that the amendment will not resolve the contradictions—indeed, the Minister may argue that it could exacerbate them—but we believe that the Bill should stipulate that the purpose of the information commissioner is to facilitate the release of information. After all, this is a Freedom of Information Bill. What more important role can the commissioner have? I beg to move.
  Lord Lucas: I have three small amendments in the group. Amendment No. 239 would insert the words "and spirit" to promote the observance by public authorities of the requirements and spirit of the Act. I lived for a long time under the aegis of the City code. It was successful because it imposed the spirit as well as the letter of the code on the people who were subject to it. A lot of clever people who were very good at getting round government regulations all the time and made a great deal of money out of doing so were unable to get round the code because they had to obey the spirit as well as the letter. As we are aiming for a culture change and do not want to encourage officials to look for legalistic ways round the provisions of the Act, the words "and spirit" would be thoroughly desirable.
  The other two amendments question why, under subsection (3), the commissioner has to have the consent of a public authority to assess whether it is following good practice. The commissioner should be able to do that off her own bat whenever she wants and report on it independently, much as Ofsted reports on how well a local education authority is doing.
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  The purpose of Amendment No. 258 is to question the Government on what restrictions the inclusion of the words "with respect to those functions" places on the commissioner. I should like to be sure that after a couple of years, she is able to say that the legislation is failing because of some provisions in the Act and that there should be extra powers or things should be written differently. She should be able to say that it is time for amendments to be made to the Act. The commissioner, who is in the middle of these things, should be able to express such views. It is not clear to me from the wording of the Bill that she would be able to do so.
  Lord Falconer of Thoroton: As regards Amendment No. 237, the Bill already enables the commissioner to promote access to information held by public authorities in general. It is envisaged that the commissioner will, for example, as part of that wider role, issue advice on a range of matters to assist both applicants and public authorities and thus facilitate public access to information held by public authorities. Therefore, Amendment No. 237 does not add anything and is unnecessary.
  As regards Amendment No. 242, the second of the amendments in the name of the noble Lord, Lord Lucas, the commissioner has extensive powers to investigate a public authority if she believes that it is failing to comply with the provisions of the Act. Those are found at Clauses 49 to 51 and do not require the consent of the public authority. Clause 46(3) gives the commissioner the power, with the consent of the authority, to perform an additional auditing function in circumstances where there is no suggestion that the authority is not complying with the provisions of the legislation but would welcome her advice. It would be odd to give the commissioner the power to audit an authority's compliance with the Act without its consent, if there was no suggestion of non-compliance. If there is a suggestion of non-compliance, as I say, that can be dealt with under Clauses 49 to 51.
  Amendment No. 258 is based on a misunderstanding of the breadth of the commissioner's functions. As drafted, the Bill would allow the commissioner to report to Parliament that she believed that the Act should be amended or that certain provisions prevented proper disclosure. That is what the noble Lord was primarily aiming at. But the commissioner cannot properly act outside the scope of her statutory functions and it would therefore be wrong to suggest that she could report to Parliament on her own, acting outside those functions.
  Finally, as regards the reference to "spirit", the Bill as drafted places wide duties on the commissioner that include, but are not limited to, the enforcement of the right of access to information held by the public authorities. Amendment No. 239 goes beyond that. In this context, reference to the "spirit" of the Act would be unhelpful. It would simply lead to legal problems; nor is it clear what it is, if not compliance with good

  433
  practice, which the commissioner must already promote. For those reasons, the amendment is not appropriate.
  The Earl of Northesk: I am grateful to the noble and learned Lord for his response. I am quite content at this stage and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 238 to 248 not moved.]
  Clause 46 agreed to.
  Clause 47 [Recommendations as to good practice]:
  [Amendments Nos. 249 to 253 not moved.]
  Lord Lucas Lord Lucas moved Amendment No. 254:
  Page 26, line 44, at end insert—
  ("( ) A practice recommendation shall never be exempt information under Part II of this Act.").
  The noble Lord said: I shall await the ministerial reply to Amendment No. 254. I do not know whether my noble friend wishes to speak to Amendment No. 255. Again, on Amendment No. 261, it saves a great deal of time first to hear the ministerial reply. I beg to move.
  Lord Bassam of Brighton: I understand that Amendment No. 255 is not to be moved. I deal with the two amendments in the group to which reference has been made. As to Amendment No. 254, nothing in the Bill as drafted requires that information contained in a practice recommendation is exempt. We believe it is likely that the commissioner will wish to summarise any recommendations she may have made when she makes her annual report to Parliament, as required under Clause 48(1). It would be open to her to refer directly to such a recommendation in that report, or in any other report that she might decide to make under the provisions of Clause 48(2). To that extent, much of the information relating to practice recommendations will be routinely made available to the public.
  The information commissioner is herself a public authority for the purposes of freedom of information. A member of the public would, therefore, be entitled to request that the commissioner, or the relevant public authority, should disclose information that she or it held which is contained in a practice recommendation. Amendment No. 254 would result in the disclosure of all the information in that recommendation, including, for example, any confidential or personal information which might have been included to illustrate a particular requirement for change. I do not think that that is sustainable in principle or practice. A fundamental principle of the Freedom of Information Bill is that it requires each application to be judged individually against the careful balance of rights which the Bill recognises. I have good reason to believe that in many cases the requirement of a blanket disclosure would result in considerable unfairness.
  I turn next to Amendment No. 261. That amendment would have the effect that an applicant could apply to the commissioner for a decision in respect of failure to comply with the codes of practice
  434
  made under Clauses 44 and 45, in addition to any failure to comply with the requirements of Part I of the Bill. As currently drafted, compliance with the codes of practice is not statutorily enforceable. The matters to be considered within the codes are ones of good or best administrative practice. We believe that they need to be flexible in order that they can be readily and effectively adapted to meet the wide range of circumstances which will apply across the 50,000 or more public authorities under the Bill. The codes are drafted in termsof desirable action or provision rather than clear and specific duties. In the absence of such specificity, it would be inappropriate to place statutory weight on compliance in such matters. I hope that on that basis the noble Lord is able to withdraw his amendment.
  Lord Lucas: I am grateful for those explanations and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 255 not moved.]
  Clause 47 agreed to.
  Clause 48 [Reports to be laid before Parliament]:
  [Amendments Nos. 256 to 258 not moved.]
  Clause 48 agreed to.
  10 p.m.
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 259:
  Before Clause 49, insert the following new clause—

  APPLICATION FOR DECISION BY COMMISSIONER: PUBLIC INTEREST
  (" . The applicant may appeal to the Commissioner where a public body refuses to comply with a request for information under this Act and the Commissioner shall determine whether it is in the public interest to comply or not, and shall direct the public authority to comply where he finds that, on balance, it is in the public interest to disclose.").
  The noble Lord said: Amendment No. 259 seeks to insert a new clause. The groupings list suggests that a large number of provisions, including the Question that Clause 52 stand part of the Bill, are to be considered with Amendment No. 259. That gives the clue to what all of these amendments are about in one way or another; namely, the ministerial veto. The White Paper considered ministerial veto over disclosure and specifically rejected it. It stated:
  "We have considered this possibility, but decided against it, believing that a government veto would undermine the authority of the Information Commissioner and erode public confidence in the Act".
  However, as it stands, Clause 52 gives Ministers the right to veto any order made by the commissioner requiring the Government to release information on public interest grounds.
  In another place, arguments were put forward to justify this, including the comment that if the information commissioner was able to override Ministers and officials, that,
  "would, artificially and unnecessarily, create a democratic deficit.—[Official Report, Commons Standing Committee B, 8/2/00; col. 431.]
  That is most certainly an arguable point. In any case, we believe that it is for the commissioner and, ultimately, Parliament to take the leading role in ensuring that government and public authorities are as open as possible.
  I am aware that government amendments have been included in this grouping. Under the ruling imposed earlier by the noble and learned Lord, Lord Archer, during our debates on the previous Bill, I should not refer to future amendments, but only to the one standing in my name. However, perhaps I may say that we support moves to give more power to the commissioner, linked to moves to make the enforcement body accountable to Parliament. Amendment No. 259 would achieve this in a relatively straightforward and understandable way, but perhaps that would make it less watertight legally than some of the more elaborate formulations which have been tabled in later amendments. I beg to move.
  Lord Goodhart: This group of amendments is the last grouping which gives rise to an important point. I believe that the ministerial right of veto is an extremely serious and important matter.
  I should say that I am reasonably grateful to the Government for modifying the original version of Clause 52 with their own proposed amendments. Those amendments will limit the possible override to Cabinet Ministers or the senior Ministers in the devolved parliaments or assemblies. I would be more grateful if I were sure whether one ought to be grateful to people for not doing something that they ought never to have done in the first place. However, it represents a significant step in the right direction.
  As I have said, this is a serious issue. I accept that it is probably relatively unlikely that it will be used, because any Cabinet Minister who decided to override a decision made by the information commissioner would be likely to be severely criticised. Furthermore, the fact that a Cabinet Minister had overridden a decision of the information commissioner obviously would be something that would come immediately into the public domain. However, I believe that, in principle, this is wrong.
  The justification that has been put forward—namely, that it is somehow undemocratic for a commissioner to compel a government or public authority to disclose information against their wishes—seems completely bogus. What is of concern here is the concealment of information, not by Parliament but by the executive. It is and always has been one of the clear roles of the judiciary—for this purpose I would include the information commissioner among the judiciary—to control the executive. It is Parliament's inability to control the executive which causes many of our democratic shortcomings. So that argument goes out of the window.
  We have here an entirely byzantine structure. We have initially a public authority—it may be a government department, a local authority or one of a
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  large number of other public authorities—which comes to the conclusion that information ought not to be disclosed. A complainant then goes to the commissioner and the commissioner—who is of course entitled to see the information in order to reach a conclusion—says, "No, I think that that information should be disclosed". The public authority, which is disappointed by the decision, then has an opportunity to take the issue to a tribunal before there is disclosure.
  But there is a shortcut. Instead of the public authority going to the tribunal and obtaining a decision there, a Cabinet Minister may come in and override the information commissioner. The Cabinet Minister can say, in effect, "I think the information commissioner took the wrong decision. I agree with the original decision of the public authority that this information should not be disclosed".
  What happens then? No doubt the noble and learned Lord will put me right if I am wrong, but it seems fairly clear that that decision would be judicially reviewable—I see the Minister nodding his head in confirmation—but what happens with judicial review? Under Clause 52(2), the accountable person is supposed to inform the complainant of the reason for his opinion, and those reasons are a basic necessity for the purposes of judicial review.
  But we then go on to Clause 52(3), which states:
  "The accountable person is not obliged to provide information under subsection (2) if, or to the extent that, compliance with that subsection would involve the disclosure of exempt information".
  So the accountable person—in this case the Cabinet Minister—says, "I am not going to tell you what my reasons are. I could not tell you without revealing exempt information".
  So where does that leave the judicial review? The court hearing the judicial review application will be in a very peculiar position. It appears to me—if I am wrong, I shall be glad to be put right—that the court hearing the judicial review application cannot ask to see the information. It is therefore in a weaker position than the information commissioner who can at least see the information. Once a matter goes to court for judicial review, it will be extremely difficult—at any rate, without some clear statutory provision—for the court to look at information which has not been disclosed to the parties. I suppose there may be exceptions in cases where there is a PII certificate, but the clause does not propose anything like that.
  The court will not be able to see the information and, because of Clause 52(3), in some cases it will not be able to see what are the accountable person's reasons. Therefore, the possibility of effective judicial review seems to be non-existent. Even if this clause was in principle acceptable—I do not believe that it is—we are left in a position where, although an application is apparently judicially reviewable, in some cases it will not be effectively reviewable because the court will not know the information, and the court will be unable to find out the reasons of the accountable person. It will be operating in a complete fog, and that is an impossible position.

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  That is an example. It is not merely a defect which is curable; it shows some of the fundamental problems with the clause itself. The Government should take the view—the view adopted by the Select Committee—that they should trust the information commissioner, backed up by the tribunal, to get the decision right and should not seek to reserve a right to override the decision of the commission.
  10.15 p.m.
  Lord Archer of Sandwell: This is another rather curious grouping. Some of the amendments relate to the powers of the commissioner, but the principal concern of most of the amendments relates to ministerial override. Perhaps that is the issue which goes most directly to the whole purpose of the Bill.
  I should like to speak to Amendments No. 273, 286 and 288. I accept that as a matter of drafting they have been overtaken by events. But, as my noble and learned friend was at pains to explain to us some days ago, the substantial redrafting to which the Government have subjected the Bill does not betoken sincere repentance; it is just better drafting.
  The White Paper seems a very long time ago. The noble Lord, Lord Cope, quoted what it said about this matter. Bliss was it in that dawn to be alive! The whole subject of freedom of information was alight with promise. Now the clouds have gathered. This is one of the clearest examples of that position. I am falling into the trap against which I warned my noble and learned friend. I am replying to his reply before he has said it. But he will understand that I have gathered the arguments which have been used about this in previous debates. There is the democratic deficit. That is absolutely breathtaking. In a constitutional law paper, a student who came up with that would not even be allowed to continue the course.
  As the noble Lord, Lord Goodhart, said, Ministers are accountable to judges. They are accountable every day of the week to people passing judgment in accordance with the rules. That is exactly the commissioner's function. It is not a democratic deficit; it is called "the executive being subject to the rule of law".
  The noble Lord, Lord Goodhart, dealt with the judicial review argument. It will not benefit the argument if I repeat it. I was once privileged to chair the Council on Tribunals. I learned that to have someone in post who has acquired expertise in a relatively narrow field is a very good way to have something reviewed. I am not in any way denigrating High Court judges. Some of my best friends are High Court judges. But they do not replace the expertise of someone like the commissioner.
  We have not yet had the argument that Ministers will override the commissioner only where they believe it to be essential to the public interest. That betokens a certain naive faith. Ministers have their share of original sin. Again, I am not being rude about Ministers. I have a history of being a Minister; I have previous convictions. But to suggest that they may disregard any possible interest which they might have
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  in non-disclosure is really expecting a higher standard of ethics than almost any human being could be expected to deliver, particularly when the chips are down.
  If reliance is to be placed on the collective wisdom of Cabinet Ministers, of course a Cabinet Minister will have to go to his colleagues and get them to agree, but it is precisely when a government have their back to the wall that they develop a collective stampede into secrecy.
  When freedom of information legislation was introduced in New Zealand, the Danks committee, which considered the matter there, expressed its confidence that the ministerial veto would be issued only in compelling cases. The Attorney-General used the argument to which the noble Lord, Lord Goodhart, has just adverted. He said that it would be a brave Minister who exercised the power. Yet in the very first year there were vetoes on forecasts about the labour market, on estimates of the number of unregistered unemployed people, on the establishment of an investment bank, on a tender for a post office contract, on an evaluation of computer use in schools and on the tender price of a contract for wall plugs— all those in the first year. Then, of course, the legislation was changed because it was found that it did not work.
  The veto might have been more acceptable if the list of exclusions with which we are dealing had not contained so many category exclusions. If it had subjected more of them to a harm test, the information would have been disclosed unless some identifiable harm was likely to result. But, in the absence of a harm test, disclosure may be refused even if no harm is likely to result. The only safeguard against that—the only long-stop—is the public interest override. If, in the application of that test, Ministers are to be judges in their own cause, we are back to the position that Ministers decide what shall be revealed and what shall be hidden. That is precisely where we were before there was a Freedom of Information Bill.
  The noble Viscount, Lord Colville of Culross, tabled an amendment to limit the number of exemptions to which the veto is to apply and to limit it to Ministers and certain other senior officials. Again, to some extent that has been overtaken by my noble and learned friend's amendment. I explained in an earlier debate that the noble Viscount, Lord Colville, asked me to say that he apologises for his absence. He is unavoidably out of the country but he asked me to refer to his amendment. Perhaps when he replies my noble and learned friend will explain why it is necessary to have a ministerial override in respect of information which is already accessible to the public. It may be that I am becoming slow in my old age, but I really have not understood the logic behind that.
  What do the Government fear will wash out of Pandora's box through that sinister escape route? I really do wonder why it is necessary to have a ministerial override at all, which is why I tabled Amendments Nos. 286 and 288. I accept that they have been overtaken by my noble and learned friend's

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  amendments, which may be why he added his name to my Amendment No. 284. I am grateful to noble Lords who added their names to that amendment, but I was pleasantly surprised to see that they included my noble and learned friend.
  It is true that in an earlier debate I renounced proverbs about Greeks bearing gifts, but I have thought of at least two possible reasons why my noble and learned friend may wish to add his name. He may simply have noticed that the subsection is out of date because it refers to Clause 13, which on any showing is destined for exile, and decided to man the gun after it was no longer loaded; or he may wish to accord a right of appeal to the tribunal against ministerial override, which is what the amendment suggests. I should be grateful if, when he replies, he would let us into that secret.
  I also tabled Amendment No. 317 to delete subsection (3) of Clause 56, which makes it clear that there is no right of appeal to the tribunal against a decision notice or an enforcement notice.
  Lord Falconer of Thoroton: The noble and learned Lord said that I added my name to Amendment No. 284. Did he mean Amendment No. 286?
  Lord Archer of Sandwell: I thought that was what I said. I apologise if I said Amendment No. 284. I meant Amendment No. 286. I am grateful to my noble and learned friend. At least it was not a misprint. He accepts that he added his name to it. We shall learn the secret in a few moments.
  My noble and learned friend has been helpful and quite accommodating from time to time in these debates. With a concession on this issue, he could build up a store of moral capital which might well see him through the remainder of our debates. If he opposes the amendments, I say at once that I should not support them today in the Division Lobby and I certainly do not propose to press mine. However, since we appear to be embarking on a constructive dialogue, I hope that that question will not arise.
  Lord Brennan: The Committee heartily endorsed the remark of my noble and learned friend the Minister about a cultural change being achieved by the Bill. That change must not only involve government (either Ministers or civil servants), but also the public. They are the crucial element in this exercise. They must have confidence in the process created by the Bill. It will, therefore, be important for us to be able to explain to the public the way in which the Bill works.
  If asked by a member of the public how the citizen will receive information under the Bill, a simpler explanation, allowing for the success of government Amendment No. 297, would be as follows: "Save as prohibited by a certificate signed by a Cabinet Minister, there shall be a right to information as hereinafter provided." I hope that I shall be forgiven for putting it so briefly, but that is the effect of eliding Clause 52 with Clause 1. The public will ask: "Why should there be such a veto?"
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  There is a perfectly reasonable explanation as regards Clauses 21 and 22 dealing with national security; and there is a specific right of appeal under Clause 59 in relation to such certificates. I am sure that that would be acceptable. But further explanation that, on top of that, a ministerial veto would be allowed for any one of the other 18 exemptions would be a little surprising to the ordinary citizen.
  If one is then to say that the Minister will exercise the veto on a certain basis, I invite my noble and learned friend to say how the veto would be exercised. First, if it is only to be exercised by a Cabinet Minister, the Home Secretary said in a debate in April in the other place that he promised to require that Cabinet colleagues be consulted before a veto was issued and that that should be required on the face of the Bill if possible or, failing that, under the ministerial code. Is that still the proposal? If it is, it would mean that any veto—subject to the fears mentioned by my noble and learned friend Lord Archer—would be the veto of all, not just one.
  Secondly, one asks the question: if the veto is to be exercised in that fashion, on what basis will it be exercised? It will arise after a commissioner has considered the public interest and prejudice; and if the Minister disagrees and has to give reasons for that disagreement, there must be a set of principles on which it is anticipated such a veto would be exercised. What are they?
  I ask these questions following my opening comment that, at the end of the day when the Bill becomes law, it must have public confidence. A wide-ranging right of ministerial veto will be a very difficult matter to explain to the ordinary citizen under the umbrella of freedom of information.
  The Committee may like to note that only a few days ago the noble and learned Lord, Lord Steyn, one of our most distinguished Law Lords and one of our leading commentators on the constitution, made a speech in which he regarded freedom of information as a highly normative aspect of constitutional government. By that, he meant that it was vital to the exercise of democratic rights. He put it in this way. We now have a fully participatory democracy—Lincoln's government of the people, by the people, for the people. That is only possible if the people have the necessary knowledge or, at least, the means of acquiring that knowledge.
  Freedom of expression is the very lifeblood of democracy, but it is truly meaningful only if there is full and effective freedom of information. A comprehensive freedom of information Act is the most important piece missing from the jigsaw of our law. Let us hope that Parliament will supply it. With that objective in mind, why supply it with this veto?
  Lord Norton of Louth: It is a pleasure to follow the noble Lord, Lord Brennan, and, not for the first time, to reinforce the points that he made, which I believe are extremely telling in the context of this clause. Like him, I should like to remind the Minister, not for the

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  first time, of the intention behind the Bill. That intention is quite clear and it is stated in the foreword to the draft code of practice. Paragraph 2 opens with:
  "It is the Government's intention that the Freedom of Information Act will be a catalyst for a change of culture within the public service towards greater openness".
  I invite the Minister to explain how this clause will contribute to serve as a catalyst in order to achieve that particular intention. Why should secrecy-prone Ministers change their culture if they have the ultimate power of veto? Officials in secrecy-prone departments—and some are prone to that—will have the opportunity to persuade the Minister to apply the provisions of Clause 52 by issuing a certificate.
  I appreciate the point made earlier by the noble Lord, Lord Goodhart, that such vetoes may be used in exceptional circumstances. That is the claim. I was going to go on to make the very point that the noble and learned Lord, Lord Archer of Sandwell, made about the experience in New Zealand, where, I gather, the veto was used 14 times in the first four years. The noble and learned Lord gave specific examples. As he mentioned, it was then tightened up, and I appreciate that the Government intend to move some way in that direction, although they will not go so far as the provisions in New Zealand.
  Therefore, for the reasons that have been given, I believe that there is a substantial problem with this clause. As those reasons have been explained so eloquently by the noble Lord, Lord Brennan, and the noble and learned Lord, Lord Archer, I shall not repeat them.
  I suspect that the Minister may fall back on what I bane is the well-tried formula that he employs in dealing with catch-all or broadly-drawn provisions. He cites examples where the use of the particular power would be appropriate. However, if one looks at the occasions on which he has cited such examples, they have never been sufficient to justify the breadth of the provision. His examples could be encompassed within a much narrower framework. Indeed, I find that what Amendment No. 293 seeks to achieve is as attractive. Certainly, I believe that we need to move in that direction. I take the view that if there is no shift in that direction, I should prefer the clause to be removed.
  10.30 p.m.
  Lord Falconer of Thoroton: When the Freedom of Information Bill becomes law, we intend that it should be a catalyst for a change in culture. The amendments that we have tabled under Clause 52 will ensure that the executive override is limited in application. It will be available only on the signature of a senior member of the Government. Although, for reasons that I shall explain in a moment, it cannot be put on the face of the Bill, it is intended that the exercise of the override should occur only after consultation within the Cabinet. Its use will he subject on the face of the Bill to a clear duty to explain the circumstances. We can be sure that this House and the other place will hold such signatories accountable for their actions and that they
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  will also be accountable in court pursuant to judicial review proceedings. I shall deal with the points made by the noble Lord, Lord Goodhart, in due course.
  There will be a limited, defined, restricted override. Having said that, in our judgment it is inescapable that there will be occasions, probably few in number, when the protection of the override will be necessary. We believe that in such cases, which will be those dealing with the most sensitive issues, it should be a senior member of the Government, able to seek advice from his Cabinet colleagues, who should decide. Cabinet Ministers are accountable in a way which the commissioner cannot be. It is right that responsibility and accountability should rest at that level for this aspect of the freedom of information regime.
  It is right and responsible that the Government accept that there will be rare occasions when they take the view that non-disclosure—even though the commissioner may feel that disclosure should take place—is appropriate. That is the view taken in other freedom of information regimes—not all—in particular that in New Zealand. An example was given by my noble and learned friend Lord Archer of Sandwell indicating what happened immediately after it was introduced. It was then, so the notes from the regional newspaper briefing indicate, that it was tightened up considerably, not entirely in ways parallel to ours. But we too have tight rules. It has rarely been used since then.
  Lord Archer of Sandwell: I thank my noble and learned friend for giving way. Is he really saying that the safeguards which are now proposed in this Bill are as secure as the safeguards which the New Zealand Government found it necessary to install?
  Lord Falconer of Thoroton: The two safeguards are different. There is, first, an Order in Council and, secondly, costs paid in a judicial review. Our proposals allow parliamentary scrutiny in relation to the exercise of the override because reasons have to he given; Ministers are accountable in Parliament. Costs in judicial review is not a protection. Where a person challenges the ministerial override in New Zealand, the government are obliged to pay the costs come what may. That is not present in our system but that does not make the difference between when it is an acceptable override and when it is not.
  The government proposals, for the reasons I have given, ensure that the decision to issue an acceptance certificate would not be taken lightly. A Minister making any such decision would be required to inform the applicant of the reasons for his decision and, as I said, would be accountable to Parliament, his Cabinet colleagues, his constituents, members of his own party and the wider population for that decision.
  The government amendments do not make provision on the face of the Bill for the certificate to be authorised by a Cabinet Minister acting collectively with Cabinet-rank colleagues. That point was raised in another place and my right honourable friend the Home Secretary said that he would consider it. In legislation passed by Parliament it is the Minister who

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  is the decision-taker. As Members of the Committee are aware, when so acting, the Minister is bound by the convention of collective responsibility. The concept of a statutory duty to consult between Cabinet colleagues is not one which fits within that convention and it would disturb it in ways which we could not predict if we were to write such a provision into the Bill. I want to make it quite clear that guidance to Ministers will require that when acting as the "accountable person", they should consult Cabinet colleagues before signing a certificate.
  Amendment No. 289 restricts the override to decisions by the commissioner relating to information held by government departments, the National Assembly for Wales and any public authorities designated by order by the Secretary of State for these purposes. The Government believe that such a power to designate further bodies by order is necessary to ensure that there is no gap in the protections required for exempt information which may be held by a body other than by a government department or the National Assembly for Wales, which it would be unacceptable to release without an avenue of final appeal on the public interest from the commission tribunal to a Cabinet Minister.
  Amendment No. 352 would have the effect that the order designating further public authorities for the purpose of this clause must be made under the affirmative resolution procedure. The requirement for affirmative resolution ensures that the provision would be used only sparingly. It would be wrong to pretend that we can be definite as to when exactly such a power would be used. The case for designation is likely to be strongest in respect of public authorities in areas such as national defence, national security and law enforcement. Immediate examples which come to mind might include bodies such as the police information technology organisation and police forces. We shall, however, want to consult carefully before bringing forward any draft orders for consideration by Parliament under the affirmative resolution procedure.
  Amendments Nos. 296, 297, 304 and 308 are consequential on Amendment No. 289.
  I turn to Amendments Nos. 298 to 303, 306 and 307, tabled by the noble Lord, Lord Lucas. These amendments seek to limit the scope of the "override" in a way which is comparable to that provided by the government amendments. I hope that therefore he will not move them.
  The noble Lord has tabled two further amendments. Amendment No. 306 would have the effect of requiring that an order must include a statement of the reasons for the order and must be made public. Amendment No. 307 would have the effect that an exception certificate issued by virtue of Clause 52(1) could never be exempt information under Part II of the Bill.
  I accept that these amendments are intended to ensure that there is transparency about the issue of an exception certificate and the reasons why it has been
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  signed. The amendments are, however, unnecessary. As I have already made clear, the grounds for the decision will in any case be in the public arena. That is because Clause 52(2), as substituted by government Amendment No. 289, provides that the accountable person shall inform the complainant of the reason for his decision at the same time or as soon as is practicable after giving the certificate to the commissioner. Therefore, the applicant receives the information almost immediately.
  The Government have made it clear that Ministers would expect to have to explain to Parliament the grounds on which the certificate has been requested and approved. I hope that in the light of those explanations, the noble Lord, Lord Lucas, will not move his amendments.
  As my noble and learned friend Lord Archer said, a number of other amendments do not fit into the mainstream but before dealing with them perhaps I may deal with the point raised by the noble Lord, Lord Goodhart, about judicial review. There is a requirement to give the reasons for the certificate. In giving those reasons, one need not give any information which would disclose the information that one is saying should not be disclosed. That is obvious common sense. However, that does not mean that one can avoid giving a full explanation as to why one is not disclosing the information.
  As regards the courts' approach to judicial review, it is for them to determine what they regard as appropriate procedures in relation to such cases. Obviously, disclosure of the information to the other side would not be appropriate, but it is for the courts to develop procedures that they consider appropriate to deal with the relationship between them and a Minister who is being judicially reviewed in relation to such a claim. The procedure in relation to PII, where the court looks at the document without it being shown to one of the parties to the litigation, was developed by the courts.
  Lord Goodhart: Is the Minister satisfied that, unless there is power in the Bill to enable the courts to do that, they will have power to insist on seeing information which is not open to the public?
  Lord Falconer of Thoroton: I do not believe that it is necessary for a power to exist in the Bill in order for it to be possible for the document to be shown to the court. However, it is a matter for the court to develop what it believes are appropriate procedures. It must be remembered that the information commissioner will have seen it.
  The other amendments grouped here propose changes which flow from the debate we have been having on Clause 52. As currently drafted, Clause 56(3) of the Bill provides that a complainant has a right of appeal against the commissioner's decision when she upholds the authority's decision not to disclose in the public interest. However, public authorities do not have the same option of bringing an appeal to the

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  tribunal in relation to a decision or enforcement notice issued by the commissioner requiring them to disclose exempt information in the public interest.
  Government Amendment No. 317 rectifies this by allowing for such an appeal. The right of appeal will exist for those few public authorities covered by the provisions at Clause 52. That should ensure that disagreements between the commissioner and such authorities are litigated in the tribunal and, if necessary, by the courts, rather than recourse being had to Clause 52.
  Amendments Nos. 272 and 286 are both consequential upon Amendment No. 317. Amendment No. 272 has the effect that decision notices in respect of failure to disclose information in the public interest must contain particulars of the right of appeal and provides that any timetable for disclosure under the decision notice must have regard to arty appeal procedure. Amendment No. 286 has a similar effect in respect of enforcement notices.
  I turn now to Amendments Nos. 273 and 288, tabled in the name of my noble and learned friend Lord Archer of Sandwell. The intention behind these amendments is clear: to negate the effect of Clause 52. However, I hope that I have made the Government's position plain in relation to that clause. Finally, I turn to Amendment No. 259. The noble Lord, Lord Cope, made clear that his intention in moving the amendment was to also to negate the effect of Clause 52. Again, I have made the Government's position clear in that respect. In the light of those arguments, I invite the noble Lord, Lord Cope, to withdraw his amendment.
  Lord Norton of Louth: Before my noble friend responds, perhaps I may say that I am extremely grateful to the Minister. I feel vindicated because I believe that he has adopted the approach that I predicted he would. However, he has not made a clear case for the breadth of the clause. He made the case that there will be circumstances—such as those associated with national security—where there is clear justification for an override. But I do not see why the provision should be so broadly drawn. I have been trying to think about this in regard to the field of education; for example, why should it encompass this provision and in what circumstances would it apply? I do not understand why it cannot be more narrowly drawn simply to cover the cases mentioned by the Minister. Indeed, we could all be persuaded that there was clearly a case for such issues to be covered.
  Lord Falconer of Thoroton: The clause is drawn in this way because the circumstances in which it will be necessary for the Cabinet, in effect, to override the information commissioner are not predictable from where we stand at present; in other words, there will not always be national security and police issues. Therefore, having identified the need in the extreme cases for the override, it would then be wrong to restrict it.
  Contrary to what my noble friend Lord Brennan said, it is worth noting that the effect of this provision is not that any decision of the information
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  commissioner can be overridden: the only decision of the information commissioner that can be overridden is one on the balance of the public interest under Clause 13. If, for example, the information commissioner determined that something was not covered by an exemption, then the ministerial override would never apply. Once it is not exempt, disclosure is automatic. The ministerial override under Clause 13 applies only where something is exempt and the Minister or the public authority concerned has refused to override the exemption in the public interest.
  Lord Lucas: That is a wonderful argument. However, under Clause 34, anything that will cause a Minister distress is exempt.
  Lord Cope of Berkeley: Although the hour is somewhat late, this has been one of the most important debates of the Committee stage. I am glad to say that the Minister made his case without resorting to the charge that the provisions were undemocratic, which caused such scorn during the course of the debate. We have also heard some extremely authoritative speeches from other speakers from all sides of the Committee—all of them against the Government's propositions. However, the clause is being substantially rewritten; indeed, the Minister just described a whole raft of amendments. We shall all have the opportunity, between now and Report stage, to study the re-written texts. As far as I am concerned that will make it much easier to follow exactly how far we have got, because the legislation has become somewhat confusing.
  The debate has also been interesting for another reason. This is the first suggestion that I recall for quite some time that the present Cabinet actually discusses matters collectively. The information that we have received during recent months suggested that Cabinet meetings were extremely brief and that they simply waft things through. But now we are told that these matters at least will be discussed round the Cabinet table on each occasion, before the dreaded veto is applied. As I said, we have had a most interesting debate and we shall have a good opportunity to study the legislation more carefully between now and the Report stage. I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  Clause 49 [Application for decision by Commissioner]:
  [Amendments Nos. 260 and 261 not moved.]
  Lord Lucas Lord Lucas moved Amendment No. 262:
  Page 27, line 8, at end insert ("or Part VI").
  The noble Lord said: In moving Amendment No. 262 I shall speak also to Amendments Nos. 269 and 271. I hope the Minister will tell me that Amendment No. 262 is not necessary. If it is, I think it should be accepted. Amendment No. 269 inserts Clause 11 into the provisions where the commissioner can decide that a public authority has failed to comply with any of the requirements of the section. I am concerned about the regulations which are to be made under the provision at the end of Clause 11 concerning

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  how cost is to be calculated. In the past, public authorities have managed to avoid answering questions by vastly inflating the costs they think they will incur and by answering relatively simple questions. The best that I know of is a quote of some £5,000 or £6,000 to disclose the names of the 26 companies which had been subject to prosecutions or warnings as a result of breaking the BSE regulations.
  The last of this rather disparate collection is Amendment No. 271, which states that a decision notice should be issued promptly. This comes back to time limits, which we have discussed before. If there are too many places in the Bill where there are no time limits set, either in the Bill or in any other form, we risk encouraging public authorities to play a game of spinning out time. If that were allowed to happen, the whole Bill would fall into disrepute. I beg to move.
  Lord Falconer of Thoroton: Amendment No. 262 is based upon the proposition that separate rights of access to historical information are contained in Part VI. I do not think that that is right. All rights of access to information are contained in Part I. It is therefore not necessary to add a reference to Part VI in subsection (1) of Clause 49. Part VI merely modifies the rights in part I in certain circumstances. The right provided by the Bill applies to information in a historical record as much as to any other information, and the commissioner's powers are the same. I hope that that satisfies the noble Lord that the amendment is unnecessary.
  Similarly, I believe that the noble Lord may have misunderstood Clause 49. That already provides that a complainant may apply for a decision from the commissioner about an authority's compliance with Part I of the Bill in respect of a request for information. That would cover the case where the authority was relying on a claim that Clause 11 applied to justify non-compliance with the request. Clause 11 is not referred to in Clause 49(4)(b) simply because there are no requirements in Clause 11 to which the notice could relate. That does not affect the basic position which I have set out. I hope that I have demonstrated that that amendment is equally unnecessary.
  As regards Amendment No. 271, it would be impractical to impose an arbitrary time limit on the commissioner when, clearly, applications under Clause 49 will vary considerably in their complexity and therefore the length of time required to make a thorough investigation. The amendment states:
  "A decision notice should be issued promptly, and in any event should not, without good cause, be issued later than the twentieth working day following the date of receipt of the application".
  I have every sympathy with what is clearly the intention behind the amendment, which is to ensure that complaints made to the commissioner are dealt with as promptly as possible. But, even if it were practicable to find a formula to ensure that decisions were made quickly but without jeopardising the thoroughness of the investigation, it is not necessary to do so because, if the commissioner fails in her duties,
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  she is answerable to Parliament. In those circumstances, I do not think that the amendment is appropriate.
  Lord Lucas: I shall study those replies with interest. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 263 to 269 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 270:
  Page 27, line 27, leave out (", 13").
  On Question, amendment agreed to.
  [Amendment No. 271 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 272:
  Page 27, line 40, leave out subsection (7).
  On Question, amendment agreed to.
  [Amendment No. 273 not moved.]
  Clause 49, as amended, agreed to.
  Clause 50 [Information notices]:
  [Amendments Nos. 274 to 279 not moved.]
  Clause 50 agreed to.
  Clause 51 [Enforcement notices]:
  [Amendments Nos. 280 to 285 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 286:
  Page 29, line 14, leave out subsection (4).
  On Question, amendment agreed to.
  [Amendments Nos. 287 and 288 not moved.]
  Clause 51, as amended, agreed to.
  Clause 52 [Exception from duty to comply with decision notice or enforcement notice]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 289 and 290:
  Page 29, line 19, leave out from beginning to ("shall") in line 21 and insert—
  ("(1) This section applies to a decision notice or enforcement notice which—

  (a) is served on—

  (i) a government department,

  (ii) the National Assembly for Wales, or

  (iii) any public authority designated for the purposes of this section by an order made by the Secretary of State, and

  (b) relates to a failure, in respect of one or more requests for information—

  (i) to comply with section 1(1)(a) in respect of information as respects which any provision of Part II provides that the duty to confirm or deny does not arise, or

  (ii) to comply with section 1(1)(b) in respect of exempt information.

  (1A) A decision notice or enforcement notice to which this section applies").
  Page 29, line 22, leave out ("day on which the notice was given to the public authority") and insert ("effective date").
  On Question, amendments agreed to.
  [Amendment No. 291 not moved.]
  The Deputy Chairman of Committees (Baroness Cox): If Amendment No. 292 is agreed to, I cannot call Amendment No. 293 because of pre-emption.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 292:
  Page 29, line 25, leave out from ("that") to end of line 26 and insert ("in respect of the request or requests concerned, there was no failure falling within subsection (1)(b).").
  On Question, amendment agreed to.
  [Amendment No. 293 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 294:
  Page 29, line 26, at end insert—
  ("(1B) In subsection (1A) "the effective date", in relation to a decision notice or enforcement notice, means—

  (a) the day on which the notice was given to the public authority, or

  (b) where an appeal under section 56 is brought, the day on which that appeal (or any further appeal arising out of it) is determined or withdrawn.

  (1C) Before making an order under subsection (1)(a)(iii), the Secretary of Slate shall—

  (a) if the order relates to a Welsh public authority, consult the National Assembly for Wales,

  (b) if the order relates to the Northern Ireland Assembly, consult the Presiding Officer of that Assembly, and

  (c) if the order relates to a Northern Ireland public authority, consult the First Minister and deputy First Minister in Northern Ireland.").

  On Question, amendment agreed to.
  [Amendment No. 295 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 296:
  Page 29, line 28, leave out ("(1)") and insert ("(1A)").
  On Question, amendment agreed to.
  The Deputy Chairman of Committees: If Amendment No. 297 is agreed to, I cannot call Amendments Nos. 298 to 303 because of pre-emption.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 297:
  Page 29, line 35, leave out subsection (4) and insert—
  ("(4) In this section "the accountable person"—

  (a) in relation to a Northern Ireland department or any Northern Ireland public authority, means the First Minister and deputy First Minister in Northern Ireland acting jointly, and

  (b) in relation to the National Assembly for Wales or any Welsh public authority, means the Assembly First Secretary.

  (c) in relation to any other public authority, means—

  (i) a Minister of the Crown who is a member of the Cabinet, or

  (ii) the Attorney General, the Advocate General for Scotland or the Attorney General for Northern Ireland.").

  On Question, amendment agreed to.
  [Amendments Nos. 298 to 303 not moved.]
  Lord Lucas Lord Lucas moved Amendment No. 304:
  Page 30, line 29, leave out subsections (5) and (6).
  The noble Lord said: I am extremely grateful to the noble and learned Lord, Lord Falconer of Thoroton, for having constructed Amendment No. 297 in a way which allowed my amendment to stand as a valid part of the Bill. I beg to move.
  On Question, amendment agreed to.
  [Amendments Nos. 305 to 307 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 308:
  Page 30, leave out lines 41 to 45.
  The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
  On Question, amendment agreed to.
  Clause 52, as amended, agreed to.
  Clause 53 [Failure to comply with notice]:
  [Amendment No. 309 not moved.]
  Clause 53 agreed to.
  Clause 54 agreed to.
  Schedule 3 [Powers of entry and inspection]:
  Lord Lucas Lord Lucas moved Amendment No. 310:
  Page 62, line 3, after ("sub-paragraph,") insert—
  ("( ) to copy any information held in electronic format, or to seize the equipment containing that information if a copy cannot conveniently be made,").
  The noble Lord said: This merely lifts a part out of another Bill that was debated in this Session—I think that it was the then electronic commerce Bill. If I am misconceived in suggesting that this measure should be included in this Bill, I shall not require much convincing. I am already convinced that Amendment No. 311 is misconceived and I shall not speak to it or move it. I beg to move.
  Lord Bassam of Brighton: I think that the relevant Bill might have been the "rest in peace" Bill.
  Amendment No. 310 is connected with powers of entry and inspection which Schedule 3 of the Bill will give to the information commissioner. The schedule provides that the commissioner will have the same powers for these purposes as she currently enjoys as Data Protection Commissioner. I am not aware that this has been a particular problem or issue for her, and in the absence of any such reported concern it would not be appropriate to make provision on the basis that the noble Lord has suggested. I trust that the noble Lord will withdraw the amendment.
  Lord Lucas: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 311 not moved.]
  Schedule 3 agreed to.
  Clause 55 [No action against public authority]:
  [Amendment No. 312 not moved.]
  Clause 55 agreed to.
  Clause 56 [Appeal against notices served under Part IV]:
  Lord Hunt of Wirral Lord Hunt of Wirral moved Amendment No. 313:
  Page 31, line 26, leave out ("or the public authority").
  The noble Lord said: We now move to that part of the Bill which relates to appeals. The purpose of this amendment is to leave out the words "or the public authority" in Clause 56(1) to ensure that the public authority has no right of appeal to the commissioner against a notice. The whole purpose behind the commissioner's appointment is to assist disclosure, not for her to get tied up in a process of administrative appeals from public authorities.
  I am aware that this amendment is being discussed at a late hour. I very much welcome the fact that the Government Chief Whip is present because I hope that on Report we may find a more amenable time of day to discuss this important Bill rather than having it squeezed on to the end of other Bills. There are a number of us, including those on the Government Benches, who believe that this is a most important Bill that ought to be discussed not only in prime time but with sufficient time allocated to it. As I say, the hour is late and I have no wish to detain people longer than is necessary.
  Therefore I simply say that I believe that it is inappropriate that public authorities which may be reluctant to give up the information that they should disclose should be able to tie up the commissioner in handling appeals, and, indeed, the tribunal in hearing them. The public authorities would already have been instructed by the commissioner to release information and should do so. The risk is that the commissioner could well be tied up by automatic appeals by public authorities creating a backlog and forcing members of the public and/or the commissioner to prepare for tribunal hearings.
  As a lawyer, I have to declare my vested interest because this would be of enormous benefit to the legal profession and those with deep pockets but is hardly likely to give effect to the main purpose of the Bill. I believe that it is only appropriate for the public to appeal to the tribunal; and this would create a firm presumption in favour of disclosure. I beg to move.
  11 p.m.
  Lord Bassam of Brighton: I had intended to deal with all the amendments in this group, if that is for the convenience of the noble Lord, Lord Lucas.
  This part of the Bill provides for an information tribunal to consider appeals against determinations of the information commissioner. The effect of Amendments Nos. 313 and 315 taken together would be to deny public authorities an avenue of independent review while allowing the right for complainants to appeal against decision notices to remain.
  We have provided for an information tribunal which will be able to look again at any complaint about decisions under this Bill. That, as the noble Lord
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  will agree, is no more than fairness demands, provides natural justice and should be available, we believe, to all parties. The amendments would remove one side of that commitment.
  Another unintended consequence would be that public authorities would also have removed from them the opportunity—it is a most important point—to appeal to the High Court on a point of law. That is an important consideration. As drafted, Clause 58 provides that such access is consequential on an appeal to the tribunal. The removal of such a right seems to the Government to be both inequitable and unjust. I ask the noble Lord to withdraw the amendment.
  Amendment No. 314 is wholly impracticable. It would give the appellant very little time to consider the commissioner's decision, let alone what grounds of appeal would be appropriate, and certainly insufficient time to take legal or other advice. Nor is any account taken of special circumstances that might delay an appeal being lodged. The impact of such an amendment would surely result in fewer well considered appeals being lodged in time and larger numbers of hurried appeals being lodged containing somewhat ill-conceived grounds. I cannot imagine that this would be the noble Lord's intention or a desirable outcome.
  Again we believe that Amendment No. 318 is completely impracticable. It is in no one's interests surely that the appeal procedure should be dragged out unnecessarily. But, equally, it is not in the interests of appellants, respondents or the cause of natural justice that tribunals should be under an unreasonable time constraint of 20 working days to reach a hurried decision. It is perhaps worth pointing out to the Committee that provisions dealing with the speed with which the tribunal hears an appeal will be dealt with by secondary legislation.
  I hope that with those explanations noble Lords will feel able not to press the amendments.
  Lord McNally: Before the Minister sits down, my noble friend Lord Goodhart mutters that he does not in principle like one-sided rights of appeal. I leave the noble Lord, Lord Hunt, to think about that.
  There is a point here which causes concern. Public authorities have deep pockets. Unless education changes the psychology of public authorities, there may be a temptation to go to appeal. If a public authority showed that tendency to appeal—if not frivolously, far too often and over protectively— would be there be any sanction?
  Lord Bassam of Brighton: There would be no sanction other than the fact that it would cost the public authority. I do not believe that a responsible public authority would want to incur that additional cost.
  It is also worth considering what happens in the event of a perverse decision. It must be right that the matter should be referred to a higher court so that the

  453
  perversity can be dealt with. We all accept that that is very unlikely in most circumstances, but it could happen and it might not be in the wider public interest.
  Lord Lucas: The Minister seemed to elevate Amendment No. 318 to a matter of enormous public importance—almost a matter of life and death. We are dealing with a tribunal that will decide between an applicant who wants a piece of information and wants it now and a very well funded public authority with every incentive to string things out and cause delay. Systems of tribunals and courts are generally pretty easy to delay with a bit of money, science and legal expertise.
  A precedent can be found in the Housing Grants, Construction and Regeneration Act 1996, which was passed when I was on the Government Front Bench. It provided for arbitration in construction disputes between two such parties—a very powerful party intent on stringing things out as long as possible and a small contractor in desperate need of the money. That Act imposes a time limit on the tribunal for the same reasons as lie behind the amendment. I believe that there was a consensus among officials and the industry at that time that there should be a time limit. Surely that is a precedent worth looking at.
  Lord Hunt of Wirral: This has been a valuable opportunity to pause for a moment and consider the points raised by my noble friend Lord Lucas and the noble Lord, Lord McNally. I should like to reflect on them, just as I hope that the Minister will reflect on the burden of our arguments. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 314 and 315 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 316:
  Page 31, line 30, at end insert—
  ("( ) In relation to a decision notice or enforcement notice which relates—

  (a) to information to which section (Decisions relating to certain transferred public records) applies, and

  (b) to a matter which by virtue of subsection (3) or (4) of that section falls to be determined by the responsible authority instead of the appropriate records authority,

  subsections (1) and (2) shall have effect as if the reference to the public authority were a reference to the public authority or the responsible authority.").
  On Question, amendment agreed to.
  Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 317:
  Page 31, line 31, leave out subsection (3).
  The noble and learned Lord said: If my noble and learned friend the Minister wishes me to move the amendment, in my usual spirit of helpfulness I shall be happy to do so. I beg to move.
  On Question, amendment agreed to.
  Clause 56, as amended, agreed to.
  Clause 57 [Determination of appeals]:
  [Amendment No. 318 not moved.]
  Clause 57 agreed to.
  Clause 58 agreed to.
  Clause 59 [Appeals against national security certificate]:
  [Amendments Nos. 319 and 320 not moved.]
  Clause 59 agreed to.
  Clause 60 agreed to.
  Schedule 4 agreed to.
  Clause 61 [Interpretation of Part VI]:
  Lord Lucas Lord Lucas moved Amendment No. 321:
  Page 33, line 4, at end insert ("unless—

  (a) the dates of creation of the records span more than two years; and

  (b) the file or other assembly may reasonably be separated into older and more recent parts.").

  The noble Lord said: This is merely a technical suggestion that there should be an obligation to look at splitting long-running files if that is appropriate.
  Amendments Nos. 322, 323, 324 and 326 cover similar areas, providing that once the 30-year limit has been reached, all sorts of exemptions should no longer apply.
  I shall listen with interest to what the Government have to say about that idea in general. However, I draw their particular attention to the inclusion of Clause 20 in Amendment No. 322. I really do not see how Clause 20 can be an active source of exemptions after 30 years.
  On Amendment No. 328, I shall listen with interest to what the Government have to say. I beg to move.
  Lord Bassam of Brighton: I recognise the concern behind Amendment No. 321 in the name of the noble Lord, Lord Lucas. But I believe that the Bill as currently drafted, backed up by the Lord Chancellor's code of practice, allows an appropriate amount of flexibility in what is described as records management.
  The Lord Chancellor's code of practice will provide guidance to authorities on the practice of records management. A working draft of the code recommends that as a general rule, files should be closed after five years, and that, if action continues, a further file should be opened.
  Moreover, the commissioner will be able to issue practice recommendations against authorities which fail to act in accordance with the code. A statutory requirement to close files every two years would not be sensible, for example, where an issue was long running and regularly yet infrequently updated. In that case, it would not be administratively useful to split one file into many parts.
  Finally in relation to this amendment, I should like to emphasise that information contained in records is accessible under freedom of information provisions whether the record has been designated as "historical"; that is, over 30 years old, or not. While the Bill disapplies certain exemptions in respect of historical records, it is also generally true that, over time, the

  455
  sensitivity of information will decrease, so that more information will become available as the years pass. Having heard that explanation, I ask the noble Lord to withdraw the amendment.
  I turn now to Amendments Nos. 322, 323, 324, 326 and 328 which would disapply certain additional exemptions in respect of information contained in historical records. Without the continuation of those exemptions, information could be disclosed which was necessary to safeguard the defence of the UK, or which could prejudice international relations, the economy, or the environment. We argue that that cannot be in the public interest.
  In each case there are good reasons for the exemptions to apply beyond the 30-year point. Disapplication could result in prejudice being caused to the national interest, and so I ask the noble Lord not to press those amendments.
  Lord Lucas: I am extremely grateful for those explanations. The noble Lord read his brief extremely well. But I still do not understand how information falling under Clause 20—information intended for future publication—can possibly be a good reason for exemption 30 years after the creation of the information. I do not insist on an answer now, but I should very much like to know why Clause 20 is not included in the list at the head of Clause 62.
  I am reminded also that one of the ongoing problems is the lack of public access to the 1911 census data.
  Lord Bassam of Brighton: I shall investigate the circumstances surrounding that and get the noble Lord an answer promptly.
  Lord Lucas: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 61 agreed to.
  Clause 62 [Removal of exemptions: historical records generally]:
  [Amendments Nos. 322 to 326 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 327:
  Page 33, line 12, leave out ("seventy-five") and insert ("sixty").
  On Question, amendment agreed to.
  [Amendment No. 328 not moved.]
  Clause 62, as amended, agreed to.
  Clause 63 [Removal of exemptions: historical records in public record offices]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 329:
  Page 33, line 27, leave out ("13(2)") and insert ("(Effect of exemptions)(3)").
  On Question, amendment agreed to.
  Clause 63, as amended, agreed to.
  11.15 p.m.
  Clause 64 [Decisions as to refusal of discretionary disclosure of historical records]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 330 and 331:
  Page 33, line 29, leave out from beginning to ("authority") in line 30 and insert ("Before refusing a request for information relating to information which is contained in a historical record and is exempt information only by virtue of a provision not specified in section (Effect of exemptions)(3), a public").
  Page 33, line 35, leave out ("Northern Ireland Minister responsible for public records in Northern Ireland") and insert ("appropriate Northern Ireland Minister").
  On Question, amendments agreed to.
  [Amendment No. 332 had been withdrawn from the Marshalled List.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 332A:
  Page 33, line 36, at end insert—
  ("( ) This section does not apply to information to which section (Decisions relating to certain transferred public records) applies.").
  The noble and learned Lord said: Amendment No. 332A is necessary in order to correct technical deficiencies in the way in which the clauses are cross-referenced in the amendment which has been withdrawn. The amendment does not in any way affect the substance of the amendment that it replaces which has already been debated. I apologise if the inclusion of a technically deficient amendment in the Marshalled List has caused any confusion. The substantive effect of the amendment is to ensure that Clause 64 and what will become Clause 65, which is now entitled "Decisions relating to certain transferred public records", are mutually exclusive. Clause 64 refers to historical records in the hands of all public authorities, except for those transferred public records in the hands of the Public Record Office which are dealt with under Clause 65. I beg to move.
  On Question, amendment agreed to.
  Clause 64, as amended, agreed to.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 333:
  After Clause 64, insert the following new clause—

  DECISIONS RELATING TO CERTAIN TRANSFERRED PUBLIC RECORDS
  (" .—(1) This section applies to any information which is (or, if it existed, would be) contained in a transferred public record, other than information which the responsible authority has designated as open information for the purposes of this section.
  (2) Before determining whether—

  (a) information to which this section applies falls within any provision of Part II providing that the duty to confirm or deny does not arise, or

  (b) information to which this section applies is exempt information,

  the appropriate records authority shall consult the responsible authority.
  (3) Where, as respects any information to which this section applies, the duty to confirm or deny is excluded only by a provision of Part II not specified in subsection (3) ofsection (Effect

  457
  of exemptions), any question as to the application of subsection (1)(b) of that section is to be determined by the responsible authority instead of the appropriate records authority.
  (4) Where any information to which this section applies is exempt information only by virtue of any provision of Part II not specified in subsection (3) of section (Effect of exemptions), any question as to the application of subsection (2)(b) of that section is to be determined by the responsible authority instead of the appropriate records authority.
  (5) Before making by virtue of subsection (3) or (4) any determination that subsection (1)(b) or (2)(b) of section (Effect of exemptions) does not apply, the responsible authority shall consult—

  (a) where the transferred public record is a public record within the meaning of the Public Records Act 1958, the Lord Chancellor, and

  (b) where the transferred public record is a public record to which the Public Records Act (Northern Ireland) 1923 applies, the appropriate Northern Ireland Minister.

  (6) Where the responsible authority in relation to information to which this section applies is not (apart from this subsection) a public authority, it shall be treated as being a public authority for the purposes of Parts III, IV and V of this Act so far as relating to—

  (a) the duty imposed by section (Special provisions relating to public records transferred to Public Record Office, etc)(3), and

  (b) the imposition of any requirement to furnish information relating to compliance with Part I in connection with the information to which this section applies.").

  On Question, amendment agreed to.
  Clause 65 [Decisions as to discretionary disclosure of records in public records offices]:
  On Question, Whether Clause 65 shall stand part of the Bill?
  Lord Falconer of Thoroton: I have already indicated my intention to oppose the Question that Clause 65 stand part of the Bill.
  Clause 65 negatived.
  Clause 66 agreed to.
  Schedule 5 agreed to.
  Clause 67 [Extension of meaning of "data"]:
  The Earl of Northesk The Earl of Northesk moved Amendment No. 334:
  Page 35, line 3, after ("(d);",") insert—
  ( ) in the definition of "data subject", after the word "individual" there is inserted "or company",
  ( ) for the definition of "personal data" there is substituted—
  ""personal data" means data which relate to—

  (i) a living individual, or

  (ii) a company (but only where those data are held by a public authority);

  where the individual or the company can be identified from those data, or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual or company and any indication of the intentions of the data controller or any other person in respect of the individual,").
  The noble Earl said: The Data Protection Act applies to individuals and, accordingly, affords no protection to companies in so far as any right to ensure that information held on them by a public authority is accurate. The enactment of this Bill will give the public right of access to information held on companies which work with public authorities. We believe that there is a lacuna here. The amendment would broaden the scope of the Data Protection Act to make sure that companies have the same right as individuals to ensure that information held on them is correct. This is important. If business organisations do not have that right there is a real risk that incorrect or inaccurate information will be released into the public domain under an FOI request, and in turn that can have grave commercial consequences for the companies concerned. I beg to move.
  Lord Falconer of Thoroton: In effect this amendment proposes a change to the Data Protection Act 1998 to extend its protection to individuals also to companies. The 1998 Act gives effect to the EC Data Protection Directive of 1995. That directive, like the Act, is also about individuals, not companies. Like the Act, the directive was drawn up having regard to the particular needs of individuals. It is wholly unreasonable to suppose that the carefully devised rules in the 1998 Act to protect individuals' data are, without any refinement, applicable to information about companies.
  If the noble Earl believes that there is a need for new legislation to protect information about companies, the right approach is to come forward with some carefully worked out, focused proposals rather than piggy-back on an existing piece of legislation. If the noble Earl's intention is to limit the scope for public authorities to disclose information about commercial undertakings under the FOI Bill, the amendment is unnecessary. There is already adequate provision in Clause 39 to protect information received in confidence. Under Clause 41, information that constitutes a trade secret is exempt, as is information the disclosure of which would, or would be likely to, prejudice the commercial interests of any person, including those of the public authority which holds the information. I do not believe that the new clause is either necessary or appropriate, and I invite the noble Earl to withdraw the amendment.
  The Earl of Northesk: I thank the noble and learned Lord for his reply. Not surprisingly, I suspected that the arguments he adduced would provide the bar for acceptance of this amendment. I shall read carefully the words of the noble and learned Lord and may—one never knows—adopt his suggestion. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 67 agreed to.
  Clause 68 agreed to.
  Baroness Masham of Ilton Baroness Masham of Ilton moved Amendment No. 335:
  After Clause 68, insert the following new clause—

  RIGHT OF ACCESS TO PERSONAL DATA: HEALTH RECORDS
  (" . In section 7(10) of the Data Protection Act 1998 (right of access to personal data) at the end of the definition of "the prescribed period" after "be prescribed" there is inserted "and in the case of a request under section 7 which relates only to data recorded in a health record, in the forty days immediately preceding the date of the request "the prescribed period" means 21 days;".").
  The noble Baroness said: In moving Amendment No. 335, I should like to speak also to Amendments Nos. 336 and 337. I wish to convey to the Committee the apologies of the noble Earl, Lord Howe, who has supported this group of amendments. He had to be in Buckinghamshire tonight. I should like also to convey the apologies of the noble Baroness, Lady Wilkins. Unfortunately, she is ill. I hope very much that she will return to the rigours of your Lordships' House by the time we debate the Bill on Report. She has a great deal to offer on these amendments.
  These three amendments deal with patients' rights to see and amend their own health records under the Data Protection Act 1998. One of the amendments applies also to social work, schools and housing records. They reinstate some aspects of these rights that existed under previous legislation but which were removed when the 1998 Act came into force in March of this year. Patients have had the right to see their manual health records since 1991 under the Access to Health Records Act 1990. Computerised health records have been available since before that time under the old Data Protection Act 1984. Both measures have been replaced by the new Data Protection Act.
  For the most part, the change has been helpful. There is now a single right of access by individuals to their own files, not only in the field of health, but across the board. Anyone who feels that they have wrongly been denied access can now complain to the Data Protection Commissioner and thus benefit from this more accessible complaint mechanism. However, some elements of the previous rights of access have been lost. These amendments seek to reinstate them.
  Amendment No. 335 would restore the 21-day period for giving access to health records when the request is limited to information recorded during the previous 40 days. Amendment No. 336 would restore the previous right of individuals to add a statement of their views about any disputed matter to their health records and certain other records. Amendment No. 337 would limit the charges that can be made for supplying patients with photocopies of their health records.
  Amendment No. 335 deals with the period of time allowed for access to health records to be given. Under the old Access to Health Records Act, the record holder had up to 40 days from the request in which to allow access. However, where a patient's request was not for the whole record, but only for information recorded in the past 40 days, access had to be given
  460
  within 21 days. This shorter period was dropped when the new Act came into force in March this year, setting a uniform 40-day period for all requests. Amendment No. 335 would reinstate the 21-day period for recently recorded information.
  A shorter period for this information could be easily achieved. Information recorded over the past 40 days is likely to relate to a current patient who has been seen recently. It is likely to be reasonably brief, perhaps no more than a single letter or entry on a file. Locating it and permitting access should be achieved relatively easily within a 21-day period. Other requests may take longer, of course, in particular if the patient has not been seen for many years. The file will be in deep storage and the record itself may be large.
  The 21-day arrangement has advantages for the record holder. If patients can secure quicker access by limiting their request to recently recorded information, they will have an incentive not to ask for the entire record if they do not really need it. This seems less work for the doctor or hospital.
  Finally, of course, the patient may be suffering from an undiagnosed problem and be anxious to see recent reports or test results, or perhaps feel that they have not been kept as fully informed as they would like. It may be extremely important for them to have the quickest possible access to the recent data in order to minimise the uncertainty and anxiety. This amendment merely seeks to restore the 21-day period in precisely the terms that applied until March this year.
  The amendment seeks to insert a new clause into Part VII of the Bill, which contains amendments to the Data Protection Act 1998. Section 7(1) of the DPA establishes the individual's right of access. Section 7(8) provides that access must be given before the end of the prescribed period. This period is defined in Section 7(10) of that Act, which states:
  "In this section…"the prescribed period" means forty days or such other period as may be prescribed".
  The amendment seeks to add the words,
  "and in the case of a request under section 7 which relates only to data recorded in a health record, in the forty days immediately preceding the date of the request "the prescribed period" means 21 days".
  Amendment No. 336 restores the right of individuals to add a statement of their own views about a disputed entry on a manually held health, school, social work and housing record. This reinstates a right that has been removed by the Data Protection Act 1998. The Access to Health Records Act gives patients the right to ask the holder of their health records to correct any inaccurate information on it. If the record holder was not satisfied that the information was inaccurate, he was required to,
  "make in the part of the record in which the information is contained a note of the matters in respect of which the information is considered by the applicant to be inaccurate".
  A copy of any correction or note then had to be supplied to the patient.
  The Act defined "inaccurate" as "incorrect, misleading or incomplete". This wide definition went beyond factual errors and allowed patients to have a

  461
  note of their own views added alongside any disputed entry, including a difference of opinion. Similar rights applied to social work and housing records under regulations made under the Access to Personal Files Act 1987, which has also now been repealed. There were separate and rather weaker provisions for school records.
  Under the Data Protection Act 1998 the individual's right to have inaccurate material corrected applies only to factual inaccuracies and not to differences of opinion. Individuals have no right as such to have their own views about a disputed matter added to the record. An obscure provision gives the record holder a degree of protection against action under the 1998 Act. If they add a note about the individual's views to record where there is an alleged factual inaccuracy in information supplied by a third party, this does not apply to inaccuracies caused by the person responsible for the record, which is where it is most needed.
  For medical records, this change represents a real loss. The right to have a note added to the record was particularly valuable for patients who believed they had been damaged by unjustified comments about their behaviour or circumstances, and who feared that these would prejudice all new staff who consulted the file in future. Comments of this kind remain on file indefinitely; it is almost impossible to have them removed. Allowing the patient's views to be added alongside at least ensured that the file would reflect both sides of the story. This was particularly helpful to patients who felt they were unfairly characterised as suffering from a psychiatric problem.
  This provision was helpful to medical staff too. They might not have been prepared to delete comments which they felt were justified, merely because they were difficult for the patient to accept. A statutory "right of reply" provided a form of compromise which helped to take some of the heat out of a difficult situation. There is no evidence that this caused problems to medical staff. It is much more likely to have provided a useful way of helping to defuse a difficult situation.
  The amendment inserts a new paragraph into Section 12A(1) of the Data Protection Act 1998. This would allow the individual, the data subject, to require the record holder, the data controller, to include in the record a statement setting out the individual's views about any matter which he or she considered to be inaccurate or misleading in relation to any fact or any opinion.
  The provision applies in relation to "exempt manual data", which is the Data Protection Act's term for manually held health, social work, housing and school records. It applies to Section 12A, which, oddly, can be found in Schedule 13 to the Act.
  The amended Section 12A(1) would then read:
  "(1) A data subject is entitled at any time by notice in writing—(a) to require the data controller to rectify, block, erase or destroy exempt manual data which are inaccurate or incomplete, or (aa) in respect of exempt manual data which the data subject considers to be inaccurate or misleading in relation to any matter of fact or any opinion, to require the data controller to include with that data a statement setting out the data subject's views in relation to
  462
  that data, or (b) to require the data controller to cease holding exempt manual data in a way incompatible with the legitimate purposes pursued by the data controller".
  Amendment No. 337 limits the fees that can be charged to people seeking copies of their own health records under the Data Protection Act 1998. Requests for most kinds of personal records under the DPA are subject to a maximum fee of £10, regardless of the volume of information supplied. However, there are special arrangements for manual health records. These are described as transitional and will only apply until October 2001. It is not known what charging regime will replace them.
  For anyone who only wants to inspect his or her manually held health record, a fee of £10 can be charged, unless something has been added to the record in the previous 40 days. In that case there is no charge for inspecting the record. This reflects the position as it was under the Access to Health Record Act.
  However, where copies of manually held health records are supplied, there is a maximum fee of £50. Previously there was a standard £10 application fee plus the cost of making any copies supplied. A maximum fee sounds like a positive development. Unfortunately, no minimum fee is specified. There is no sliding scale to reflect the number of copies supplied and no requirement that fees be reasonable. The maximum fee can therefore also be the minimum fee or the standard fee. There is nothing to stop the holder of a health record charging £50 for supplying just a single photocopy.
  There are signs that some hospitals may be doing that. A brief telephone survey of National Health Service hospitals revealed that at least one National Health Service trust had set a flat fee of £50 for all requests for photocopies regardless of how few photocopies are involved. That is the Preston Acute Hospitals Trust. The Homerton Hospital NHS Trust in London has a minimum fee of £25 for supplying photocopies. If more than 100 copies are supplied, a £50 fee is charged. Others make a £10 administrative charge plus the charge for photocopying. That ranges from 10p per sheet to 40p per sheet, but subject to the £50 overall cap.
  The DPA sets out a more generous charging scheme for school records. A statutory maximum of £1 can be charged for the first 20 sheets with further copies charged at £1 for each 10 sheets. An overall maximum of £50 applies regardless of how many copies are supplied. The amendment proposes that charges for photocopies of health records should broadly follow this approach. There would be a maximum photocopying charge of 10p per sheet. For material other than photocopies—for example, copies of X-rays—a reasonable fee could be charged. The overall total fee that could be charged could not exceed £50.
  The amendment takes the form of an amendment to the Data Protection (Subject Access) (Fees and Miscellaneous Provisions) Regulations 2000. The normal method of amending regulations is by introducing new regulations, not by primary legislation. Therefore, there may be technical

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  objections to the amendment. However, I hope that the Government will understand the public's concern over these matters and will be helpful.
  This is a highly sensitive matter. The terrible Shipman case and the tragedies of the children in Bristol bring this subject to the front line. With the likely disappearance of community health councils, people may feel that without an independent body working on their behalf patients will be even more vulnerable. One should ask this question. If patients do not have easy access to their records, whose life is it anyway? I beg to move.
  Lord Cope of Berkeley: My noble friend Lord Howe spoke to me about these amendments. I should like to support my noble friend Lady Masham, who has waited so patiently until this late hour and has spoken to the amendments clearly.
  I wish to stress two points. First, as my noble friend said, the amendments seek only to reinstate rights that existed under the previous legislation but which were removed when the Data Protection Act 1998 came into force. I certainly doubt whether the changes were intentional. My understanding is that the NHS Executive has no difficulty about the aspects of the Access to Health Records Act 1990 which fell between the cracks of the new legislation. It would be odd if the Government wanted a watering down of the ability of patients to gain access to their health records as the theme of so-called patient empowerment is one that looms large in the new NHS plan.
  I have another point. I do not believe that it would be adequate to deal with this matter by guidance issued to the NHS. I understand that these issues were raised with the Department of Health and the NHS Executive in correspondence with the Campaign for Freedom of Information. The suggestion was that it proposed to deal with the matters by issuing guidance. That would be helpful as far as it went, but it would not go as far as the amendments do in replacing a legally enforceable right. In particular, it would not apply to the private healthcare sector as did the old legislation. Guidance would obviously affect the NHS, but it would not affect the private sector, which would remain entirely outside the scope of the legislation. In addition, the guidance would not be enforceable in the way that these provisions were under the legislation that fell between the cracks. Therefore, I hope that the Minister will reflect on these matters, at least before Report, if he cannot accept these amendments.
  Lord Clement-Jones: I support the arguments advanced by the noble Baroness, Lady Masham, and the noble Lord, Lord Cope. It appears that the NHS Executive would also support the arguments, even if it does not support the principle of putting it into primary legislation. In a letter to the Campaign for Freedom of Information, it states:
  "It is not intended … that patients should suffer from the changes … we are keen to ensure that the rights that previously existed are not lost".
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  As the noble Lord, Lord Cope, pointed out, it is not adequate simply to have guidance. We have the opportunity to restore the rights in the Access to Health Records Act 1990 in to the Data Protection 1998, and we should take that opportunity in primary legislation, for all the reasons put forward by the noble Baroness, Lady Masham, and the noble Lord, Lord Cope.
  11.45 p.m.
  Lord Bassam of Brighton: I should like to pay tribute to the noble Baroness for her careful and exceptionally detailed exposition of the three amendments. I promise that I shall not attempt to match that. However, I shall have to go through some of the detail. At the end of the day, there is not a great deal between us. We are intent on being helpful.
  Amendment No. 335 would make a slight change in the arrangements for individuals to gain access to their health records under the Data Protection Act.
  The Data Protection Act 1998 provides expressly that responses must be dealt with promptly. They must in any event be dealt with within 40 days. That requirement for promptness, which was not in the 1984 Act, ensures that those responsible for providing information must do so without excessive delay. The 1998 Act makes it clear that 40 days is not a benchmark; it is the upper limit of what is acceptable. The rule is, therefore, that if data controllers can provide the information before the maximum 40-day period has expired, they must do so.
  We believe that this formulation achieves in a different way the aim underlying the noble Baroness's amendment. However, I can undertake to make one move in her direction. The Government are in the process of preparing guidance on access to health records. As part of that guidance, we shall make it clear that it is good practice to comply with the subject access requests, especially those to newly compiled records, within 21 days. In the light of that undertaking and the overall requirement for promptness, I trust that the noble Baroness will feel able to withdraw that amendment.
  Amendment No. 336 would reintroduce, for a limited category of manual records and for a limited period of time a right for which legislation now superseded by the Data Protection Act 1998 formerly provided.
  In bringing forward the 1998 data protection legislation, the Government decided to apply the single regime for which it provides to the records previously covered by certain sectoral access legislation. As a consequence of that, one or two of the features of the legislation, as the noble Baroness carefully explained, were not replicated. The right to add a statement of inaccuracy was one of those. Within the context of the new data protection law, we did not consider it to be so important a feature as to compel its retention. I shall explain briefly why that was so.
  The special access legislation provided only limited safeguards for individuals: a right of access, and a right to have data rectified or to have a "statement of

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  inaccuracy" added. However, the 1998 Act provides for what we believe to be more effective safeguards in respect of such records. For the first time those can now be enforced by the Data Protection Commissioner.
  That is a major improvement on the previous position in that individuals are no longer alone. They have the support and help of a very powerful enforcement body. The commissioner will be able to take a view on the rights and wrongs of any disagreement about accuracy. Unlike the individuals, she has powers to force record-holders to comply with her decision. Therefore, there will not simply be a statement of inaccuracy; there will be a correction of the record. We believe that to be better than simply having the right to have a statement that one believes it to be inaccurate without the record being affected. I hope that the noble Baroness will accept that because, as I said earlier, I do not believe that there is a great deal between us on that point.
  The Government understand the concerns about this matter. We do not believe that it is necessary to include the provision which the noble Baroness suggests within the legislation. However, we accept that there is a case for addressing it as a matter of good practice. The health department guidance for data controllers in the health sector will make clear that data controllers should allow individuals to include a statement of their views on the relevant records if they disagree with the content of those records. That provides double cover. Again, I hope that the noble Baroness will see that as an important change and an improvement on the position that existed prior to the 1998 Act.
  I turn to Amendment No. 337. As with the previous two amendments, this amendment relates to the former sectoral legislation, the substance of which was included in the Data Protection Act 1998. Under the previous legislation, a number of different charging regimes existed for providing subject access but there was no maximum fee. In moving to the new regime, the Government decided broadly to preserve the arrangements for health records but with one important change in respect of manually held health records by introducing a £50 fee ceiling.
  We believe that that represented a significant improvement for data subjects as compared to the arrangements which existed previously. The change was not uncontentious. The introduction of a £50 ceiling where previously there was no maximum has meant that subject access requests now generate costs for health bodies which provide access that are not always covered by the maximum fee that they are able to charge. In some cases, the costs far outweigh the maximum fee. Some of the health bodies concerned have made very clear to the Government their concern about having to bear those extra costs.
  Because of those conflicting interests, the Government have recognised that the present arrangements will need to be reviewed in the light of experience. For that reason, we introduced them on a transitional basis. Under the regulations which set the
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  subject access fees, the arrangements will last only until 24th October 2001. Before that period expires, we shall review them and bring forward amending regulations. Therefore, your Lordships will have the opportunity to test the measure of our commitment.
  The Government would far prefer to proceed in that way rather than moving immediately to the arrangements proposed in the noble Baroness's amendment. The review will need to take into account all the relevant considerations and assess carefully the representations that are made on both sides of the case. The Government will want to consider all possible solutions to what we accept is a difficult problem, including the type of approach outlined in Amendment No. 337.
  I hope that those explanations and the three complicated but nevertheless important areas to which the noble Baroness spoke will be given fair consideration by the Committee. I hope that the amendments can be withdrawn. I am sure that, particularly with regard to the last amendment, the Government will take the noble Baroness's comments as her representations on that issue and those will be fed into the review process. I hope that the noble Baroness will feel able to withdraw her amendment.
  Baroness Masham of Ilton: I thank the Minister for his helpful reply. At this late stage I can only say that we shall try to see the Minister, if he is agreeable.
  Lord Bassam of Brighton: I am more than happy to do anything I can to assist.
  Baroness Masham of Ilton: It is a complex matter. The public need confidence in being able to obtain easy access to their records. We live in a changing world. We have a lot of agency staff and there is now a lack of continuity in the health service.
  The guidance worries me because, as has been said, it will not be applicable to the private sector, which many patients use. We need to look at the Minister's response and consider whether or not to come back on Report. In those circumstances I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 69 [Exemptions applicable to certain manual data held by public authorities]:
  [Amendment No. 336 not moved.]
  Clause 69 agreed to.
  Clauses 70 to 72 agreed to.
  [Amendment No. 337 not moved.]
  Schedule 6 [Further Amendments of Data Protection Act 1998]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 338:
  Page 67, line 31, leave out ("10") and insert ("3(h) (honours) after "honour" there is inserted "or dignity".
  . In paragraph 10 of that Schedule").
  On Question, amendment agreed to.
  Schedule 6, as amended, agreed to.
  Clause 73 [Power to make provision relating to environmental information]:
  [Amendment No. 339 not moved.]
  Clause 73 agreed to.
  Clause 74 [Power to amend or repeal enactments prohibiting disclosure of information]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 340:
  Page 38, line 28, leave out ("or 13").
  On Question, amendment agreed to.
  Clause 74, as amended, agreed to.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 341:
  After Clause 74, insert the following new clause—

  DISCLOSURE OF INFORMATION BETWEEN COMMISSIONER AND OMBUDSMEN
  (" .—(1) The Commissioner may disclose to a person specified in the first column of the Table below any information obtained by, or furnished to, the Commissioner under or for the purposes of this Act or the Data Protection Act 1998 if it appears to the Commissioner that the information relates to a matter which could be the subject of an investigation by that person under the enactment specified in relation to that person in the second column of that Table.

  TABLE

  Ombudsman

  Enactment

  The Parliamentary Commissioner for Administration.

  The Parliamentary Commissioner Act 1967 (c. 13).

  The Health Service Commissioner for England.

  The Health Service Commissioners Act 1993 (c. 46).

  The Health Service Commissioner for Wales.

  The Health Service Commissioners Act 1993 (c. 46).

  The Health Service Commissioner for Scotland.

  The Health Service Commissioners Act 1993 (c. 46).

  A Local Commissioner as defined by section 23(3) of the Local Government Act 1974.

  Part III of the Local Government Act 1974 (c. 7).

  The Commissioner for Local Administration in Scotland.

  Part II of the Local Government (Scotland) Act 1975 (c. 30).

  The Scottish Parliamentary Commissioner for Administration.

  The Scotland Act 1998 (Transitory and Transitional Provisions) (Complaints of Maladministration) Order 1999 (S.I. 1999/1351).

  The Welsh Administration Ombudsman.

  Schedule 9 to the Government of Wales Act 1998 (c. 38).

  The Northern Ireland Commissioner for Complaints.

  The Commissioner for Complaints (Northern Ireland) Order 1996 (S.I. 1996/1297 (N.I. 7)).

  The Assembly Ombudsman for Northern Ireland.

  The Ombudsman (Northern Ireland) Order 1996(S.I. 1996/1298 (N.I. 8)).

  (2) Schedule (Disclosure of information by ombudsmen) (which contains amendments relating to information disclosed to ombudsmen under subsection (1) and to the disclosure of information by ombudsmen to the Commissioner) has effect.").
  The noble and learned Lord said: We believe it is likely that complaints surrounding disclosure of information by public authorities will often be closely linked to issues of maladministration. The Government believe it is right to amend the Bill to allow information to be shared between the commissioner and specified ombudsmen.
  The new clause proposed by Amendment No. 341 has the effect of allowing the information commissioner to disclose to specified public sector
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  ombudsmen any information she has obtained or which has been given to her under and for the purposes of the FOI Bill and the Data Protection Act 1998, if it appears to her that the information in her possession relates to a matter which could be the subject of an investigation by that public sector ombudsman under the enactment relating to that ombudsman.
  The ombudsmen specified have been chosen because they are able to investigate public authorities within the meaning of the FOI Bill. The new schedule proposed by Amendment No. 366 amends the relevant legislation relating to the specified ombudsmen to provide that they are similarly empowered to disclose information to the information commissioner.
  Amendment No. 367 is consequential upon the new clause and the new schedule. It has the effect that they will come into force two months after the date of Royal Assent to the Bill. These amendments do not extend the remit of either the information commissioner or the public sector ombudsmen, but simply enable them to exercise their powers more efficiently. They will mean that the commissioner and the specified ombudsmen will have the powers necessary to carry out investigations effectively and without any unnecessary duplication of effort.
  I hope I have convinced the Committee of the necessity for these amendments. I beg to move.
  On Question, amendment agreed to.
  [Amendment No. 342 not moved.]
  Clause 75 [Offence of altering etc. records with intent to prevent disclosure]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 343:
  Page 39, line 3, leave out ("or 13").
  On Question, amendment agreed to.
  [Amendments Nos. 344 to 346 not moved.]
  Clause 75, as amended, agreed to.
  Clause 76 [Saving for existing powers]:
  [Amendment No. 347 not moved.]
  Clause 76 agreed to.
  Clause 77 [Defamation]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 348:
  Page 39, line 25, leave out ("or 13").
  On Question, amendment agreed to.
  Lord Lucas Lord Lucas moved Amendment No. 349:
  Page 39, line 28, at end insert ("or substantial negligence").
  The noble Lord said: Under Clause 77, a public authority is exempted from action for defamation unless the publication is shown to have been made with malice. However, I do not see why it should get away with substantial negligence. Malice clearly should exempt it from privilege but if a public authority is so negligent in accepting a third-party statement as true and then passes it on to another person, thereby creating a defamation, I do not see why it should

  469
  escape. There must be some limits on the negligence of a public authority under such circumstances. I beg to move.
  Lord Bassam of Brighton: Clause 77 is necessary in order to remove the anomaly where a public authority could find itself exposed to an action for defamation by a third party simply because it had complied with a statutory duty to disclose information. Removing this immunity in respect of substantially negligent disclosures, as proposed in Amendment No. 349, would be utterly perverse. If the authority has acted to fun its statutory duty, why should it also be open to an action for defamation by a third party?
  It is not clear exactly what standard of legal practice the concept of substantial negligence is supposed to provide for. However, I am advised that in any case publication being made with substantial negligence is not one with which the law of tort is familiar. Furthermore, it would not be possible for the publication to be made negligently when it has been made pursuant to a statutory obligation to disclose. Those two issues cannot sit and rest easily together.
  In order to reassure the Committee, I emphasise that the Bill provides strong safeguards for the disclosure of personal information. Such information may not be disclosed to someone other than the person to whom it relates unless that person would have a right of access to it under the Data Protection Act 1998. However, that condition can be side-stepped if the public interest so required and its disclosure was in accordance with the data protection principles. It is also worth reminding the Committee that the Bill provides strong protection for commercial interests through Clause 41.
  I believe that the amendment is unworkable. It deals in terms which are unknown within this area of law. I suggest to the noble Lord that he should withdraw his amendment and think again.
  Lord Lucas: I am afraid that I do not find the noble Lord's argument at all cogent. If we are looking at a circumstance in which publication can be made with malice, it can surely be made negligently. If the noble Lord is saying that he cannot imagine how a publication can be made negligently when it is made in accordance with the Act, how on earth can it be made with malice when it is made in accordance with the Act?
  If, for the moment, we accept that the clause is drafted to deal with a real possibility—that is, that the communication can be made with malice—it must be possible to make it with negligence. Those two commonly go together, as anyone involved in publication will confirm. One can get caught for malice where one has some interest in communicating bad things about the person in respect of whom one is passing on information. One can then get caught for negligence—perhaps that is not the right word but I am sure that the noble and learned Lord could provide the right one—when one has not taken the trouble to ascertain that the information being passed on is in any way correct and one should have taken such trouble.
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  Those are the two main issues about which we poor publishers receive nasty letters from people's lawyers. I do not see that one can have a set of circumstances in which one is possible but not the other. I believe that both should be covered by the clause or the clause does not belong in the Bill at all. I hope that the noble Lord will be able to say something more or perhaps we ought to be counting how many gentlemen the Chief Whip has at his disposal.
  Midnight
  Lord Goodhart: The noble Lord, Lord Lucas, is quite right to say that if it is disclosed under a statutory duty, it is very hard to see how it can be disclosed maliciously. But surely the answer to that is that, rather than adding the word "negligence", we ought to delete the words,
  unless the publication is shown to be made with malice",
  as being irrelevant.
  Lord Bassam of Brighton: I am reminded that an authority cannot negligently disclose information when it is purposely disclosing such information. However, I am also advised that an authority can be doing something with malice. That is the point. I believe that the noble Lord has failed to follow part of the argument. That is what I said earlier. I made it clear that the substantial negligence featured in the noble Lord's argument could not be applied to the law of tort in the way he suggested. Perhaps the noble Lord should study what has been said and reflect upon it.
  Lord Lucas: Given the lack of any look of fear in the eyes of the Chief Whip, perhaps I should agree to do that. However, I should be most grateful if the noble Lord would write to me giving me an example of a circumstance under which a local authority might—
  Lord Bassam of Brighton: Of course, the noble Lord knows that I am always more than happy to engage in correspondence with him, especially if it would save us endless hours of dancing on the head of a pin.
  Lord Lucas: Perhaps the Minister could give me an example of how the mention of "malice" in Clause 77 would act in an actual, practical circumstance; in other words, how malice could apply in such circumstances. I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  Clauses 77, as amended, agreed to.
  Clause 78 agreed to.
  Clause 79 [Application to government departments, etc.]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 350 and 351:
  Page 39, line 39, leave out subsection (1) and insert—
  ("(1) For the purposes of this Act each government department is to be treated as a person separate from any other government department.
  (1A) Subsection (1) does not enable—

  471

  (a) a government department which is not a Northern Ireland department to claim for the purposes of section 39(1)(b) that the disclosure of any information by it would constitute a breach of confidence actionable by any other government department (not being a Northern Ireland department), or

  (b) a Northern Ireland department to claim for those purposes that the disclosure of information by it would constitute a breach of confidence actionable by any other Northern Ireland department.").

  Page 40, line 7, leave out subsection (4).
  On Question, amendments agreed to.
  Clause 79, as amended, agreed.
  Clause 80 [Orders and regulations]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 352 to 354:
  Page 40, line 13, after ("(7),") insert (" 52(1)(a)(iii)").
  Page 40, line 13, leave out (" 43(1) or (2)").
  Page 40, line 14, at end insert ("or 73(3)").
  On Question, amendments agreed to.
  Clause 80, as amended, agreed to.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 355:
  After Clause 80, insert the following new clause—
  MEANING OF "WELSH PUBLIC AUTHORITY"
  (" .—(1) In this Act "Welsh public authority" means—

  (a) any public authority which is listed in Part II, III, IV or VI of Schedule 1 and whose functions are exercisable only or mainly in or as regards Wales, other than an excluded authority, or

  (b) any public authority which is an Assembly subsidiary as defined by section 99(4) of the Government of Wales Act 1998.

  (2) In paragraph (a) of subsection (1) "excluded authority" means a public authority which is designated by the Secretary of State by order as an excluded authority for the purposes of that paragraph.
  (3) Before making an order under subsection (2), the Secretary of State shall consult the National Assembly for Wales.").
  On Question, amendment agreed to.
  Clause 81 [Interpretation]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 356:
  Page 40, line 34, at end insert—
  (""appropriate Northern Ireland Minister" means the Northern Ireland Minister in charge of the Department of Culture, Arts and Leisure in Northern Ireland").
  On Question, amendment agreed to.
  [Amendment No. 357 had been withdrawn from the Marshalled List.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 357A:
  Page 40, line 34, at end insert—
  (""appropriate records authority", in relation to a transferred public record, has the meaning given by section (Special provisions relating to public records transferred to Public Record Office, etc)(5);").
  The noble and learned Lord said: This amendment, and Amendments Nos. 363A and 364A are also necessary in order to correct technical deficiencies. The
  472
  amendments do not in any way affect the substance of the amendments which they replace and which we have already debated. Once again, I offer my apologies to the Committee for the inclusion of technically deficient amendments. The substantive effect of these amendments is simple. The three terms are already defined in the clause. The amendments include a reference to these definitions in Clause 81, the definition clause. This ensures that all definitions are gathered in one place, thus aiding the user of the legislation. I beg to move.
  Lord Lucas: I only wish that the noble Lord, Lord Bassam, had been in a position to receive that sort of advice in relation to the RIP Bill.
  On Question, amendment agreed to.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 358 to 360:
  Page 40, line 38, leave out (" 1(4)") and insert (" 1(8)").
  Page 40, line 41, at end insert—
  (""executive committee", in relation to the National Assembly for Wales, has the same meaning as in the Government of Wales Act 1998;").
  Page 41, line 16, at end insert—
  (""Northern Ireland public authority" means any public authority, other than the Northern Ireland Assembly or a Northern Ireland department, whose functions are exercisable only or mainly in or as regards Northern Ireland and relate only or mainly to transferred matters;").
  On Question, amendments agreed to.
  [Amendment No. 361 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 362:
  Page 41, line 19, at end insert—
  (""public record" means a public record within the meaning of the Public Records Act 1958 or a public record to which the Public Records Act (Northern Ireland) 1923 applies;").
  On Question, amendment agreed to.
  [Amendment No. 363 had been withdrawn from the Marshalled List.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 363A
  Page 41, line 21, at end insert—
  (""responsible authority", in relation to a transferred public record, has the meaning given by section (Special provisions relating to public records transferred to Public Record Office, etc)(5);").
  On Question, amendment agreed to.
  [Amendment No. 364 had been withdrawn from the Marshalled List.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 364A and 365:
  Page 41, line 31, at end insert—
  (""transferred public record" has the meaning given by section (Special provisions relating to public records transferred to Public Record Office, etc)(4);").
  Page 41, line 32, at end insert—
  (""Welsh public authority" has the meaning given by section (Meaning of "Welsh public authority");").
  On Question, amendments agreed to.
  Clause 81, as amended, agreed to.
  Clauses 82 and 83 agreed to.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 366:
  Before Schedule 7, insert the following new schedule—

  SCHEDULE DISCLOSURE OF INFORMATION BY OMBUDSMEN

    The Parliamentary Commissioner for Administration
    1. At the end of section 11 of the Parliamentary Commissioner Act 1967 (provision for secrecy of information) there is inserted—
    "(5) Information obtained from the Information Commissioner by virtue of section (Disclosure of information between Commissioner and ombudsmen)(l) of the Freedom of Information Act 2000 shall be treated for the purposes of subsection (2) of this section as obtained for the purposes of an investigation under this Act and, in relation to such information, the reference in paragraph (a) of that subsection to the investigation shall have effect as a reference to any investigation."
    2. After section 11A of that Act there is inserted—
    "Disclosure of information by Parliamentary Commissioner to Information Commissioner.
    11AA.—(1) The Commissioner may disclose to the Information Commissioner any information obtained by, or furnished to, the Commissioner under or for the purposes of this Act if the information appears to the Commissioner to relate to—

    (a) a matter in respect of which the Information Commissioner could exercise any power conferred by—

    (i) Part V of the Data Protection Act 1998 (enforcement),

    (ii) section 47 of the Freedom of Information Act 2000 (practice recommendations), or

    (iii) Part IV of that Act (enforcement), or

    (b) the commission of an offence under—

    (i) any provision of the Data Protection Act 1998 other than paragraph 12 of Schedule 9 (obstruction of execution of warrant), or

    (ii) section 75 of the Freedom of Information Act 2000 (offence of altering etc. records with intent to prevent disclosure).

    (2) Nothing in section 11(2) of this Act shall apply in relation to the disclosure of information in accordance with this section."
    The Commissions for Local Administration in England and Wales
    3. In section 32 of the Local Government Act 1974 (law of defamation, and disclosure of information) after subsection (6) there is inserted—
    "(7) Information obtained from the Information Commissioner by virtue of section (Disclosure of information between Commissioner and ombudsmen) of the Freedom of Information Act 2000 shall be treated for the purposes of subsection (2) above as obtained for the purposes of an investigation under this Part of this Act and, in relation to such information, the reference in paragraph (a) of that subsection to the investigation shall have effect as a reference to any investigation."
    4. After section 33 of that Act there is inserted—
    "Disclosure of information by Local Commissioner to Information Commissioner.
    33A.—(1) A Local Commissioner may disclose to the Information Commissioner any information obtained by, or furnished to, the Local Commissioner under or for the purposes of this Part of this Act if the information appears to the Local Commissioner to relate to—

    (a) a matter in respect of which the Information Commissioner could exercise any power conferred by—

    (i) Part V of the Data Protection Act 1998 (enforcement),

    (ii) section 47 of the Freedom of Information Act 2000 (practice recommendations), or

    (iii) Part IV of that Act (enforcement), or

    (b) the commission of an offence under—

    (i) any provision of the Data Protection Act 1998 other than paragraph 12 of Schedule 9 (obstruction of execution of warrant) or

    (ii) section 75 of the Freedom of Information Act 2000 (offence of altering etc. records with intent to prevent disclosure).

    (2) Nothing in section 32(2) of this Act shall apply in relation to the disclosure of information in accordance wit h this section."
    The Health Service Commissioners
    5. At the end of section 15 of the Health Service Commissioners Act 1993 (confidentiality of information) there is inserted—
    "(4) Information obtained from the Information Commissioner by virtue of section (Disclosure of information between Commissioner and ombudsmen) of the Freedom of Information Act 2000 shall be treated for the purposes of subsection (1) as obtained for the purposes of an investigation and, in relation to such information, the reference in paragraph (a) of that subsection to the investigation shall have effect as a reference to any investigation."
    6. After section 18 of that Act there is inserted—
    "Disclosure of information to Information Commissioner.
    18A.—(1) The Health Service Commissioner for England or the Health Service Commissioner for Wales may disclose to the Information Commissioner any information obtained by, or furnished to, the Health Service Commissioner under or for the purposes of this Act if the information appears to the Health Service Commissioner to relate to—

    (a) a matter in respect of which the Information Commissioner could exercise any power conferred by—

    (i) Part V of the Data Protection Act 1998 (enforcement),

    (ii) section 47 of the Freedom of Information Act 2000 (practice recommendations), or

    (iii) Part IV of that Act (enforcement), or

    (b) the commission of an offence under—

    (i) any provision of the Data Protection Act 1998 other than paragraph 12 of Schedule 9 (obstruction of execution of warrant), or

    (ii) section 75 of the Freedom of Information Act 2000 (offence of altering etc. records with intent to prevent disclosure).

    (3) Nothing in section 15 (confidentiality of information) applies in relation to the disclosure of information in accordance with this section."
    The Welsh Administration Ombudsman
    7. In Schedule 9 to the Government of Wales Act 1998 (the Welsh Administration Ombudsman), at the end of paragraph 25 (confidentiality of information) there is inserted—
    "(5) Information obtained from the Information Commissioner by virtue of section (Disclosure of information between Commissioner and ombudsmen) of the Freedom of

    475
    Information Act 2000 shall be treated for the purposes of sub-paragraph (1) as obtained for the purposes of an investigation and, in relation to such information, the reference in paragraph (a) of that subsection to the investigation shall have effect as a reference to any investigation."
    8. After paragraph 27 of that Schedule there is inserted—
    "Disclosure of information to Information Commissioner
    28.—(1) The Welsh Administration Ombudsman may disclose to the Information Commissioner any information obtained by, or furnished to, the Welsh Administration Ombudsman under or for the purposes of this Schedule if the information appears to the Welsh Administration Ombudsman to relate to—

    (a) a matter in respect of which the Information Commissioner could exercise any power conferred by—

    (i) Part V of the Data Protection Act 1998 (enforcement),

    (ii) section 47 of the Freedom of Information Act 2000 (practice recommendations), or

    (iii) Part IV of that Act (enforcement), or

    (b) the commission of an offence under—

    (i) any provision of the Data Protection Act 1998 other than paragraph 12 of Schedule 9 (obstruction of execution of warrant), or

    (ii) section 75 of the Freedom of Information Act 2000 (offence of altering etc. records with intent to prevent disclosure).

    (2) Nothing in paragraph 25(1) applies in relation to the disclosure of information in accordance with this paragraph."
    The Northern Ireland Commissioner for Complaints
    9. At the end of Article 21 of the Commissioner for Complaints (Northern Ireland) Order 1996 (disclosure of information by Commissioner) there is inserted—
    "(5) Information obtained from the Information Commissioner by virtue of section (Disclosure of information between Commissioner and ombudsmen) of the Freedom of Information Act 2000 shall be treated for the purposes of paragraph (1) as obtained for the purposes of an investigation under this Order and, in relation to such information, the reference in paragraph (1)(a) to the investigation shall have effect as a reference to any investigation."
    10. After that Article there is inserted—
    "Disclosure of information to Information Commissioner
    21A.—(1) The Commissioner may disclose to the Information Commissioner any information obtained by, or furnished to, the Commissioner under or for the purposes of this Order if the information appears to the Commissioner to relate to—

    (a) a matter in respect of which the Information Commissioner could exercise any power conferred by—

    (i) Part V of the Data Protection Act 1998 (enforcement),

    (ii) section 47 of the Freedom of Information Act 2000 (practice recommendations), or

    (iii) Part IV of that Act (enforcement), or

    (b) the commission of an offence under—

    (i) any provision of the Data Protection Act 1998 other than paragraph 12 of Schedule 9 (obstruction of execution of warrant), or

    (ii) section 75 of the Freedom of Information Act 2000 (offence of altering etc. records with intent to prevent disclosure).

    (2) Nothing in Article 21(1) applies in relation to the disclosure of information in accordance with this Article."
    The Assembly Ombudsman for Northern Ireland
    11. At the end of Article 19 of the Ombudsman (Northern Ireland) Order 1996 there is inserted—
    "(5) Information obtained from the Information Commissioner by virtue of section (Disclosure of information between Commissioner and ombudsmen) of the Freedom of Information Act 2000 shall be treated for the purposes of paragraph (1) as obtained for the purposes of an investigation under this Order and, in relation to such information, the reference in paragraph (1)(a) to the investigation shall have effect as a reference to any investigation."
    12. After that Article there is inserted—
    "Disclosure of information to Information Commissioner
    19A.—(1) The Ombudsman may disclose to the Information Commissioner any information obtained by, or furnished to, the Ombudsman under or for the purposes of this Order if the information appears to the Ombudsman to relate to—

    (a) a matter in respect of which the Information Commissioner could exercise any power conferred by—

    (i) Part V of the Data Protection Act 1998 (enforcement),

    (ii) section 47 of the Freedom of Information Act 2000 (practice recommendations), or

    (iii) Part IV of that Act (enforcement), or

    (b) the commission of an offence under—

    (i) any provision of the Data Protection Act 1998 other than paragraph 12 of Schedule 9 (obstruction of execution of warrant), or

    (ii) section 75 of the Freedom of Information Act 2000 (offence of altering etc. records with intent to prevent disclosure).

    (2) Nothing in Article 19(1) applies in relation to the disclosure of information in accordance with this Article."
    The Commissioner for Local Administration in Scotland
    13. In section 30 of the Local Government (Scotland) Act 1975 (limitation on disclosure of information), after subsection (5) there is inserted—
    "(5A) Information obtained from the Information Commissioner by virtue of section (Disclosure of information between Commissioner and ombudsmen) of the Freedom of Information Act 2000 shall be treated for the purposes of subsection (2) as obtained for the purposes of an investigation under this Part of this Act and, in relation to such information, the reference in subsection (2)(a) to the investigation shall have effect as a reference to any investigation."").
    On Question, amendment agreed to.
    Schedule 7 agreed to.
    Clause 84 [Commencement]:
    Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 367:
    Page 42, line 25, at end insert—
    ("( ) section (Disclosure of information between Commissioner and ombudsmen) and Schedule (Disclosure of information by ombudsmen),").
    On Question, amendment agreed to.
    Clause 84, as amended, agreed to.
    Clause 85 agreed to.
    In the Title:
    [Amendment No. 368 not moved.]
    House resumed: Bill reported with amendments.
    House adjourned at seven minutes past midnight.